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IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR_ Complainant

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IN THE SUPREME COURT OF FLORIDA THE FLORIDA BAR_ Complainant Powered By Docstoc
					                    IN THE SUPREME COURT OF FLORIDA


THE FLORIDA BAR,

             Complainant,              Supreme Court Case No:
                                       [TFB Case No. 2009-30,954(18C)(CES)]
v.

TERRY M. FITZPATRICK WALCOTT,

             Respondent.


                PETITION FOR EMERGENCY SUSPENSION

      This petition of The Florida Bar seeks emergency relief and requires the

immediate attention of the court pursuant to R. Regulating Fla. Bar 3-5.2. The

Florida Bar seeks the emergency suspension of Terry M. Fitzpatrick Walcott from

the practice of law in Florida based on facts that establish clearly and convincingly

that Terry M. Fitzpatrick Walcott appears to be causing great public harm by

misappropriating funds held in trust, as will be shown by facts supported by the

sworn complaints received by The Florida Bar, attached as Composite Exhibit "A,"

the Affidavit of The Florida Bar's Chief Auditor, Clark V. Pearson, attached as

Exhibit "B," a copy of the court order dated September 9, 2005 in Case No. 02-

CA-004497 in the Circuit Court in and for Hillsborough County, Florida, attached

as Exhibit "C," a copy of respondent's letter dated November 15, 2005 to The

Honorable William P. Levens, Circuit Court Judge for the Thirteenth Judicial
Circuit in and for Hillsborough County, Florida attached as Exhibit "D,"

respondent's trust account bank statements for November 2005, December 2005,

and December 2006, reflecting the ending balance for the pertinent periods of time

attached as Composite Exhibit "E" to the petition as follows:

       1.    The filing of this Petition for Emergency Suspension has been

authorized by the Executive Director of The Florida Bar.

      2.     Respondent, Terry M. Fitzpatrick Walcott, is and at all times

hereinafter mentioned, was a member of The Florida Bar and subject to the

jurisdiction and disciplinary rules of the Supreme Court of Florida.

      3.     Respondent is currently the subject of bar disciplinary matters which

have been assigned The Florida Bar file numbers 2008-31,723(18C); 2009-

30,444(18C); 2009-30,828(18C); and 2009-30,872(18C).

      4.     The bar's investigation of this matter has indicated the following, as it

relates to The Florida Bar File Nos. 2008-31,723(18C); 2009-30,444(18C); 2009-

30,828(18C); and 2009-30,872(18C):

                   A.     The Florida Bar received sworn complaints on April 17,

      2008 and September 22, 2008 from Cleopatra Edmonds alleging that

      respondent received settlement funds on her behalf and failed to fully

      disburse the proceeds to her as well as failed to provide her with an
accounting of the funds. Subsequently, on September 17, 2008 and January

5, 2009, The Florida Bar received sworn complaints from Brenda Morrison,

Felicia Shepard and Jimmicia Smith, respectively, with the same allegations

regarding respondent's failure fully disburse settlement funds to them. See

composite exhibit containing sworn complaints received by The Florida Bar,

attached as Exhibit "A."

             B.    On July 25, 2008 the Eighteenth Judicial Circuit

Grievance Committee "C" issued a subpoena duces tecum for respondent's

trust account and operating account records in addition to respondent's client

files.

             C.    Although respondent did not fully comply with the

grievance committee's subpoena duces tecum, The Florida Bar's Chief

Auditor, Clark V. Pearson, was able to conduct a compliance audit of

respondent's records. According to the bar's audit, respondent withdrew all

of the funds from his trust account during December 2005 after making only

partial disbursements of settlement proceeds to the complainants and other

family members. The total balances in respondent's trust account fail to

contain sufficient funds in order to satisfy the documented claims identified

in the records.   Therefore, respondent has misappropriated trust funds
belonging to his clients. See Affidavit of the bar's Chief Auditor, Clark V.

Pearson, attached as Exhibit "B."

      D.       The bar's audit revealed that respondent received $1,715,518.34

into his trust account, by wire transfer, on or around October 5, 2005, as

settlement proceeds in a personal injury/wrongful death case as a global

settlement for his clients Cleopatra Edmonds, Brenda Morrison, Felicia

Shepard, Jimmicia R. Smith, and additional family members. Immediately

thereafter on October 7, 2005 respondent made a bank transfer of

$760,000.00 to his operating account, for his 40% attorney's fee.

      E.       Respondent was to hold funds in his trust account pending the

final determination of the outstanding charging lien by William S. Prates, II,

P.A. in accordance with the court's order dated September 9, 2005. See

Exhibit "C."

      F.       Respondent, in his November 15, 2005 letter to The Honorable

William P. Levens, confirmed that he was holding funds in trust in the

amount of $239,553.38. See Exhibit "D."

      G.       Respondent prepared settlement statements for the clients.

However, respondent only made partial disbursements to the clients of their

settlement funds. Respondent subsequently withdrew all of the funds from
his trust account during December 2005, after making partial disbursements

to his clients.

       H.     Respondent's trust account had a zero balance on December 31,

2005. See the pertinent bank statements attached as Composite Exhibit "E."

       I.     Respondent should be holding in trust at least $126,298.93 for

the individuals listed above. However, respondent's trust account balance

was $6.37 as of December 31, 2006. See the pertinent bank statements

attached as Composite Exhibit "E."
                                                   9'


       J.     Respondent received three payments between November 2004

and May 2005 totaling $150,000.00 from New Amsterdam Capital,

hereinafter NAC, on behalf of his clients during the pending litigation. NAC

is a company that provides funds to clients who are involved in litigation, so

that the clients can have funds for living expenses until the case is settled.

       K.     Respondent's limited documents reflect that the payments from

NAC, in the amount of $50,000.00 each, was intended for clients, and

should have been deposited into respondent's trust account.

       L.     The payments were wired directly into respondent's operating

account. According to respondent's records, a portion of the funds were

used as costs for the litigation. However, based on respondent's records, he
       should still be holding in trust on behalf of his clients cost funds of at least

       $63,842.66.

              M.     Respondent does not have the funds available in his trust

       account to satisfy the claims for the afore-referenced individuals. Therefore,

       respondent misappropriated the funds being held in respondent's trust

       account for above-listed identified claims.

              N.     Respondent has engaged in a continuing course of conduct

       involving misappropriation with his trust account(s).      Further, respondent

       has failed to perform the minimum trust accounting procedures and failed to

       maintain the minimum trust accounting records as required by The Rules

       Regulating The Florida Bar.

       WHEREFORE, based on the aforementioned exhibits, the bar asserts the

respondent has caused, or is likely to cause, immediate and serious harm to his

clients and/or the public and that immediate action must be taken for the protection

of the respondent's clients and the public. Therefore, pursuant to Rule Regulating

The Florida Bar 3-5.2, The Florida Bar respectfully requests this court to:

       A.     Suspend the respondent from the practice of law until further order of

this court.
      B.       Order the respondent to accept no new clients from the date of this

Court's order, and to cease representing any clients after thirty days from the date

of this Court's order.    In addition, respondent shall cease acting as personal

representative for any estate, as guardian for any ward, and as trustee for any trust

and will seek to withdraw from said representation within thirty days from the date

of this court's order and will immediately turn over to any successor the complete

financial records of any estate, guardianship or trust upon the successor's

appointment.

      C.       Deposit any fees, or other sums received in connection with the

practice of law or in connection with the respondent's employment as a personal

representative, guardian or trustee, paid to the respondent during the first thirty

days after issuance of this Court's order of emergency suspension into a specified

trust account from which withdrawal may only be made in accordance with

restrictions imposed by this Court. Further, the bar requests the respondent be

required to notify Staff Counsel of The Florida Bar of the receipt and location of

said funds.

      D.       Order Respondent to furnish a copy of his suspension order to all

clients, opposing counsel and courts before which he is counsel of record as

required by Rule 3-5. l(g) of the Rules of Discipline of The Florida Bar and to
furnish Staff Counsel with the requisite affidavit listing all clients, opposing

counsel and courts so informed within 30 days after receipt of the court's order.

      E.     Order that the respondent not withdraw any money from any trust

account or other financial institution account related to his law practice until

further order of this Court unless the respondent first notifies the Chief Branch

Discipline Counsel of The Florida Bar, Orlando Branch, Jan K. Wichrowski, of his

intention to withdraw funds and Jan K. Wichrowski approves the withdrawal or

order of the circuit court in which an inventory attorney has been appointed

pursuant to 1-3.8, R. Regulating Fla. Bar.

      Additionally, respondent shall not withdraw any money from any financial

institution account that contains funds that originated from a probate estate,

guardianship estate, or trust for which respondent acted as personal representative,

guardian, or trustee, until further order of this court unless respondent first notifies

Jan K. Wichrowski of his intention to withdraw funds and Jan K. Wichrowski

approves the withdrawal or order of the circuit court in which an inventory

attorney has been appointed pursuant to 1-3.8, R. Regulating Fla. Bar.

      F.     Order the respondent to notify, in writing, all banks and financial

institutions where the respondent maintains an account related to the practice of

law, or related to services rendered as a personal representative of an estate, or

                                           8
related to services rendered as a guardian, or related to services rendered as a

trustee, or where respondent maintains an account that contains funds that

originated from a probate estate for which he was personal representative,

guardianship estate for which was guardian, or trust for which was trustee, of the

provisions of this Court's order of and to provide all the aforementioned banks and

financial institutions with a copy of this Court's order.

      Furthermore, it is requested that the respondent be required to provide Jan K.

Wichrowski with a copy of the notice he sends to each bank or financial institution

of the provisions of this Court's order of suspension and to provide all the

aforementioned banks and financial institutions with a copy of this Court's order.

      G.     Order the respondent to refrain from transferring the ownership of any

real or personal property purchased in whole or in part with funds properly

belonging to clients, probate estates for which he served as personal representative,

guardianship estates for which he served as guardian, and trusts for which he

served as trustee.

      Additionally, the bar requests that the respondent be ordered to notify Jan K.

Wichrowski of his intent to transfer ownership of any real or personal property and

to provide Jan K. Wichrowski with information proving that the property to be

transferred was not purchased with funds properly belonging to a client, a probate
estate for which served as personal representative, a guardianship estate for which

served as a guardian, or a trust for which served as a trustee.

      H.     Order the respondent to return promptly to each client, probate estate,

guardianship estate, or trust, upon request, all unearned fees, deposits, expense

money, documents, information and other objects or things whatsoever belonging

to such client, probate estate, guardianship estate, or trust and, in order to

accomplish this, to make himself available at a single, specific business address

during normal working hours to receive such requests.




                                         10
     Respectfully submitted,



     KENNETH LAWRENCE MARVIN
     Staff Counsel
     The Florida Bar
     651 East Jefferson Street
     Tallahassee, Florida 32399-2300
     (850)561-5600
     ATTORNEY NO. 200999



      0
     11
      Executive Director
     7The Florida Bar
      651 East Jefferson Street
      Tallahassee, Florida 32399-2300
      (850)561-5600
      ATTORNEY NO. 123390

     and



            ;iA ANN TORO SAVITZ
              isel
     The Florida Bar
     1200 Edgewater Drive
     Orlando, FL 32804
     (407)425-5424
     ATTORNEY NO. 559547




11
                        CERTIFICATE OF SERVICE

       I HEREBY CERTIFY that the original of the foregoing has been furnished
by regular U.S. mail to the Supreme Court of Florida, Supreme Court Building,
500 South Duval Street, Tallahassee, Florida 32399-1925; a copy of the foregoing
has been furnished by certified mail no. 7160 3901 9843 1200 8224, return receipt
requested, to Scott Kevork Tozian, Counsel for Respondent, Smith Tozian &
Hinkle, P.A., 109 North Brush Street, Suite 200, Tampa, Florida 33602; and a
copy of the foregoing has been furnished by regular U.S. mail to Bar Counsel,
Patricia Ann Toro Savitz, The Florida Bar, 1200 Edgewater Drive, Orlando,
Florida 32804-6314, this \^ day of ^frmafQ                   , 2009.




                                              iNMETH LAWRENCE MARVIN
                                            Staff Counsel




                                       12
                                                                                                                     RECEIVED
                                                                                                                       17


 PART ONE: (Read instructions on reverse side.)
   Your Name: Cl to Oft+m 6a m or\A j                                              Attorneys Name: ~te. r n/ i A/a / f e +}-
   Address: 305 Ever Green Pl<;,<-P ^U/.                                           Address: 1^1 VOf n4u ^rcfafcCiVfJe,
   City:Y\JiVk.r H(5iUi6n State: F L X                                             City: Ir/llU Ptf\V      ^     State: f t
   Phone: "^99-7303 ZroCode: 3^^Sfi                                                Phone:          '       Zip Code: 32-S63
   ACAP Reference No. 08-13766


  PART TWO; The specific thing or things I am complaining about are:

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                                        of
  PART THREE; uThe witnesses in support v my allegations are: [see attached sheet],
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j' PART FOUR: Under penalty of perjury, I declare the foregoing facts are tnte, correct and complete.


                       cm- . 721 -352 -
                         0
                                                                          Signat                                        ate


                                                                                                                               THE FLORIDA BAR'S
                                                                            305"                                                     EXHIBIT

                                                                                                                                     A
                                   The Florida Bar
                               Inquiry/Coinplaiiit Form

 PART ONE: (Read instructions on reverse side.)
  Your Name: i      |                D.                    Attorney's Name: / ^
                                                           Address: I oM i \Klv
   City: VJi'ir-cV?Vt-]a \> g_m State:
   PhoneSta3 -^1 7-S3o& Zip Code:                          Phone:
                                                                              H-        . Zip Code:
   ACAP Reference No.


                                                                         p
 PART TWO: (See reverse, part two.) The specific thing or things I am complaining about are:
                                                                                   Lo




\fjt & i ^t d ^4t e. (2<?j-eG£e ^ o r on cx.'vi *pK ^ tyf* voXi (Go4-4-' sV? \l
 PART THREE: (See reverse, part three.) The witnesses in support of my allegations are: [see attached
 sheet].Ojna ^ f>r8>, Qebrcv ^.cj^iari 5-}-?l\
 PART FOUR: (See reverse, part four.) *"[" V\^ K\ t-, rv^
 I did / did not (circle one or the other) attempt to use ACAP to resolve this situation.
 To attempt to j^solve this matter^! did the following:
      ,




  PART FIVE TSee reverse, part five.): Under penalty of perjury, I declare the foregoing facts are true, correct
  and complete.




                                               Signature                                          Date
                                                                                                   03
                                  The Florida Bar
                              Inquiry/Complaint Form
                                                                                      IT     rHE
                                                                                                    o
                                                                                  I
                                                                                  1            /wR?5A^r~—J
                                                                                        --^__^RUA/DO~^
PART ONE: (Read instructions on reverse side.)
 Your Name: "Bm-lO^/ mOrri&Ort                           Attorney's Na vuf^ipfrU      UJnlCa-f^
                                                                                 /
 Address: /£2<T7 Crf^-J-y^Pj^-i   A-V4L*                 Address:
 Citv: il3ikelGn<7            State: p- 1                Citv: rCiin •T iTfTfch        State: ?"""/
 Phone: ff-5 ~T<^> -5?-6 V Zip Code- 'IS <?D S"          Phone:                    Zitt Code:
 ACAP Reference No.


PART TWO:     (See reverse, part two.) The specific thine or things I am complaining about are:




PART THREE: (See reverse, part three.) The witnesses in support of my allegations are: [see attached
sheet],

PART FOUR: (See reverse, part four.)
I did-'Tdid riotTtircle one or the other) attempt to use ACAP to resolve this situation.
To auEempt'to rasolve this matter, I did the following:                   "           "^




PART FIVE (See reverse, part five.): Under penalty of perjury, I declare the foregoing facts are true, correct
and complete.




                                             aignature                                       Date
I . Ql^(l\tTLArLr<VC?C7
                                 The Florida Bar
                             Inquiry/Complaint Form                                             %0
3919 Avenue PNW
Winter Haven, FL 33881

PART ONE: (Read instructions on reverse side.)
 Your Name: ~~3 *                               Attorney's Name:           ~?T2? *~ri-fr   *• ^V>
 Address: *& (&> £\Li£> P                       Address:                              "
 Citv: LJ\                                     .City:.                                 State:
                      Zip Code: 3 "3 *3 2 J Phone:.                               Zip Code.
 ACAP Reference No. 09-1 1473


PART TWO: The specific thing or things I am complaining about are:




 PART THREE: The witnesses in support of my allegations are: [see attache4 sheet].

             prJkrt,




 PART FOUR: Under penalty of perjury, J declare the foregoing facts are true, correct and complete.




                                                                                                Date
                                 The Florida Bar
                             Inquiry/Complaint Form
Ms Felicia Shaphard
3919 Avenue PNW                                                                                          05
Writer Haven, FL 33881

PART ONE: (Read instructions on reverse side.)
                    .        i• ]       )     i
 Your Name: "^-o_ \ i Ci <^ O t/uM)fuXt- cL             Attorney's Name:                      JA-)fk./Cc
 Address: b ^ tl \ fcuiLS/ P. ro.L^> .                  Address:
 City.                      State:                      .aty.Jl                         State:
                                 : 332                  Phone: _                  .Zip Code:.
 ACAP Reference No. 09-1 1473


PART TWO: The specific thing or things I am complaining about are:



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PART THREE: The witnesses in support of my allegations are: [see attached sheet].
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PART FOUR: Under penalty of perjury, I declare the foregoing facts are true, correct and complete




                                            Signature                                             Date
                                  AFFIDAVIT


STATE OF FLORIDA
COUNTY OF ORANGE


Before me, the undersigned authority, personally appeared Clark V. Pearson,
CPA, Chief Auditor for The Florida Bar, who after being duly sworn, deposes
and says the following:

1.    I have been employed by the Florida Bar since August, 1978, to perform
compliance audits of attorney trust account records. My business address is The
Florida Bar, 1200 Edgewater Drive, Orlando, Florida 32804.

2.     I am a Certified Public Accountant, and am currently licensed to practice in
Florida. I am a member of the Florida and American Institutes of Certified Public
Accountants. I have been qualified as an expert witness on over 40 occasions in
trust accounting matters before a referee.

3.    I reviewed documents regarding respondent, Terry M. Fitzpatrick Walcott
received from respondent pursuant to the grievance committee subpoena for trust
records, operating records, and client files. I reviewed and analyzed the trust and
operating records, client files and case documents received from respondent, the
sworn complaints from two former clients, Cleopatra Edmonds and Brenda
Morrison, and additional documents received from the complainants. In addition, I
reviewed the sworn complaints from Felicia Shepard and Jimmicia R. Smith.

4.    I have also reviewed respondent's written response and attachments dated
January 28, 2009.

5.    The respondent did not fully comply with the subpoena for the audit period
of January 1, 2003 through July 31, 2008. The files and most bank statements and


                                                                            THE FLORIDA BAR'S

                                                                                 EXHIBIT
records were produced. However, many records were not produced and some are
still missing. Additionally, no trust journals, ledger cards, bank reconciliations or
monthly comparisons have been produced.


6.     According to records provided by respondent, he settled the personal
injury/wrongful death liability case involving the complainants and other family
members in a global settlement of $1,900,000.00 as set forth in a mediation
agreement executed on August 4, 2005. I prepared a schedule pertaining to
respondent's settlement records and statements. Attachment No. 1.

7.    An order dated September 9, 2005, directed respondent to hold funds in trust
pending the final determination of the outstanding charging lien by William S.
Prates, II, P.A. The court issued subsequent orders which identified an amount of
$239,553.38 as the portion of the settlement proceeds to be held in trust by
respondent. Composite Attachment No. 2.

8.     My review of the respondent's trust and operating records as well as client
file documents reflect that respondent made only partial disbursements of
settlement proceeds to the complainants and other family members.

9.   Further, respondent withdrew all of the funds from his trust account during
December 2005, after making partial disbursements to his clients.

10. Respondent's records reflect that he withdrew the funds from his trust
account contrary to the court's September 9, 2005 order and contrary to
respondent's own letter to the court dated November 15, 2005 in which he stated
that $239, 553.38 was being held in trust.

11. Respondent's trust account had a zero balance at December 31, 2005
according to the bank statement provided by respondent. Attachment No. 3.

 12. As of the date of this affidavit, the clients have not received full and
complete settlement proceeds from respondent. Respondent still owes the clients
funds from the settlement proceeds he received on their behalf. Respondent owes
the clients anywhere from $126,298.93 to $447,312.14, with the lowest amount
primarily based on the information contained in respondent's written response
dated January 28, 2009.
13. Respondent received funds totaling $200,000.00 from New Amsterdam
Capital, hereinafter NAC, on behalf of his clients during the pending litigation.
NAC is a company that provides funds to clients who are involved in litigation, so
that the clients can have funds for living expenses until the case is settled.

14. Respondent failed to provide documentation and records as to who received
the first seven payments, totaling $50,000.00.

15. According to respondent's limited documentation, the last three payments
from NAC, in the amount of $50,000.00 each, was intended for clients, and should
have been deposited into respondent's trust account.

16. Respondent's records reflect that the last three payments totaling
$150,000.00 were the payments that were wired directly into respondent's
operating account. The documents supporting the above statement are enclosed as
Attachment No. 4.

 17. I reviewed respondent's attachments provided with his October 2, 2008
letter to The Florida Bar.        Respondent's cost attachment includes two
disbursements totaling $43,736.80 that were previously paid from his trust account
after the settlement funds were received. Based on the attachment, respondent's
total costs were $129,894.14. However, the two checks identified above were
disbursed from the trust account following the receipt of the settlement proceeds
and should be deducted from his cost sheet. These two disbursements are reflected
in respondent's October 2005 trust account bank statement. Accordingly,
respondent should be holding in trust on behalf of his clients cost funds of at least
$63,842.66. Attachment No. 5.

18. Based on my review of all the records and documentation provided to date,
respondent should be holding in trust the balance of the settlement proceeds due
and outstanding to the complainants and other family members from the
underlying personal injury/wrongful death matter.

19. According to the last bank statement provided by respondent, the balance in
the trust account was $6.37 on December 31, 2006. Therefore, respondent's
balances fail to contain sufficient funds in order to satisfy the afore-referenced
claims. Attachment No. 6.
 20. Based on the results of my examination to date, it is my professional opinion
 that the respondent, Terry M. Fitzpatrick Walcott is not in substantial compliance
 with the bar's rules governing trust accounts.



 FURTHER AFFIANT SAYETH NOT.



                                        CLARK V. PEARSON, CPA



                                            ,
  Swornjo and subscribed before me this^        day of                         , 2009.
                                          —
'"(Signature of Notary Public - State of Fwrida)

  (Print, Type, or Stamp Commission Name of Notary Public)
  Personally Known       \^
                                            oj#'%   SUSANA M RODRIGUEZ
                                           &'ft >l MY COMMISSION # DD620421
                                           ''%$&$! EXPIRES December 06, 2010
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                     IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
                            IN AND FOR fflLLSBOROUGH COUNTY, FLORIDA

                                                                     CIVIL DIVISION

       FELICIA SHEPHARD, individually, as personal
       representative of the estates of James Smith, and
       Joyce M. Smith, and as mother and natural
       guardian of Jimmicia R. Smith and Carla A.
       Graham; CLEOPATRA PERRY EDMONDS,
       individually, as personal representative of the
       estate of Shawn R. McKinney JH, and as mother
       and natural guardian of Rodney D. E. Youn5 Jr.;
       and BRENDA SHEPHARD, as mother and
       natural guardian of Brenda L. Morrison,

                                         Plaintiffs,
                             vs.                                                      Case Number: 02 04497
                                                                                      Division H

       KUMHO TIRE U.S.A., INC.,
       KUMHO INDUSTRIAL CO., LTD., and
       GINGER D. DELMAS d/b/a JEAN's
       AUTO SALES,
                       Defendants.



                                                                           ORDER

                  THIS MATTER, having come on for hearing on the ex parte motion of Plaintiffs for

       permission partially to disburse settlement proceeds prior to adjudication of the charging lien of

       William S. Prates, II, P.A.,

                  IT IS HEREBY ORDERED THAT

                  Counsel for Plaintiffs is authorized to disburse to Plaintiffs seventy-five percent (75%) of

       the net proceeds (after deduction of attorney's fees and costs) reflected in the Closing Statements

       presented to, approved and placed under seal by the Court at the September 8, 2005, hearing on

       the joint motion to dismiss. The remaining 25% of the Plaintiffs' net proceeds shall be kept in
  — 9 5 ; 3 : 5 6 PM : i u cl g e s 5 1 h - f l o o r                 ;8i33O734O8               #   3'




trust by counsel for Plaintiffs pending adjudication of the charging lien filed by William S.

Prates, U, P.A.

         SO ORDERED




Honorable William P. Levens
Circuit Court Judge
         IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
                IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
                          GENERAL CIVIL DIVISION


                                             )   Case No.: Case No. 02-4497
FELICIA SHEPHARD, et al.,                    )

              Plaintiff,                     )

       vs.                                   ) ORDER ALLOCATING ATTORNEY FEE
                                             ) AND ENFORCING CHARGING LIEN
KUMHO TIRE U.S.A., et al.,                   )

              Defendant                      )



       THIS CAUSE was heard by the court on November 8, 2005, upon the motion of

William S. Frates, II, P.A., to enforce an attorney's charging lien filed on behalf of his

current firm and the defunct entity of Frates & Smith, LLC, against the proceeds of the

Plaintiffs' settlement. Present were William S. Frates, II, Esquire, Dan Snelling, Esquire

[an attorney working for Mr. Frates], Sharon Mitchell [support staff with Frates' firm],

Terry Walcott, Esquire, along with the Plaintiffs' representatives, Felicia Shephard, and

Cleopatra Edmonds.

       The court received sworn testimony or statements from Messrs. Frates, Snelling

and Walcott, and from Ms. Mitchell. The court received affidavits and itemizations of

time and activities from both Messrs. Frates and Waicott.

       At the root of the issue before the court is how to divide the $239,553.38 in

attorney fees being held in trust and generated by the settlement of the underlying

personal injury/wrongful death case, which was handled on a contingent fee basis.

After an initial fee contractwlth Abrahamson & Uiterwyk on June 9, 2000, the Plaintiffs
                 *c


signed a second contract of representation with the Frates & Smith firm on February 15,

2002. That contract remained in effect until March 26, 2004, when the Plaintiffs signed




                            ORDER ALLOCATING ATTORNEY FEE - 1
a third contract with William S. Prates, II, P.A. Mr. Walcott was an independent

contractor attorney with that firm until" his separation date in October 2004. When Mr.

Walcott left the Frates firm, the Plaintiffs chose to stay with Walcott [who had single-

handedly represented the clients] and discharge Frates. The most recent and fourth

contract was between the Plaintiffs and Mr. Walcott on November 8, 2004, which was

the agreement in place when the case was settled in 2005.

           It is clear to this court that among attorneys Frates, Smith and Waicott, there

was a pattern of secretive behavior, distrust, and non-disclosure of information. There

were clandestine meetings between lawyers and the client-representatives. For

reasons best known to the Plaintiffs, they discharged Frates [& Smith] and stayed with

Walcott.

          The law allows parties in this type of case to discharge a lawyer with or without

cause, but if discharged without cause the discharged lawyer is entitled to a fee based

upon a quantum meruitanalysis. Mr. Frates called his associate, Mr. Snelling, to testify

that he "recreated" Mr. Walcott's hours from January 2004 to the present, and estimates

that he only spent 271 hours on this case after leaving. That analysis misses the mark.

The correct analysis is to examine the amount of time expended by Frates, et al. while

they still had the case.

          I find that the number of estimated hours claimed by Mr. Frates on behalf of

himself and the firm of Frates & Smith cannot be justified, or in deference to his

admitted reconstruction of the hours expended, cannot be sufficiently substantiated.

While Mr. Frates offered no testimony on the reasonable hourly value of his billable

time1, this court has no doubt that it should be between $350.00 and $400.00 an hour.



1
    Other than the $500 an hour amount listed on Frates unverified outline of quantum meruit




                                 ORDER ALLOCATING ATTORNEY FEE - 2
This court also recognizes that Mr. Walcott was a paid contractor while he worked for

the Prates' firm[s], and has apparently received undisclosed remuneration for his

services under a non-contingent salary agreement.

                                           CONCLUSION

       After reviewing all the written submissions, this court specifically finds that the

law firm entities of William S. Prates, !!, P.A. and Prates & Smith, LLC, are entitled to

200 hours at an hourly rate of $400.00, for a total fee of $80,000.00. Terry Walcott,

Esquire [Walcott Law Firm, P.A.] as the attorney who performed all of the work involved,

is entitled to the balance of the fees held in trust.

       It is SO ORDERED this 17th day of November, 2005, at Tampa, Hillsborough

County, Florida.                                                 /s/WILUAM.ELEVENS


                                                                 William P. Levens
                                                                 CIRCUIT JUDGE



Copies mailed to:
Terry M. Walcott, Esq.
1841 Winding Ridge Circle
Palm Bay, PL 32909

William S. Prates, II, Esq.
830 Azalea Lane
Vero Beach, PL 32963




                              ORDER ALLOCATING ATTORNEY FEE - 3
                IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
                       IN AND FOR H1LLSBOROUGH COUNTY. FLORIDA
                                     CIVIL DIVISION

FELICIA SHEPHARD, individually, as personal
representative of the estates of James Smith and
Joyce M. Smith, and as mother and natural
guardian of Jimmicia R. Smith and Carla A.
Graham; CLEOPATRA PERRY EDMONDS,                                  Case Number: 02-CA-004497
individually, as personal representative of the
estate of Shawn R. McKinney HI, and as mother                     Division H
and natural guardian of Rodney D. E. Young Jr.;
and BRENDA SHEPHARD, as mother and
natural guardian of Brenda L. Morrisson,

        Plaintiffs,



KUMHO TIRE U.S.A., INC., KUMHO
INDUSTRIAL CO., LTD., and GINGER
D. DELMAS d/b/a JEAN's AUTO SALES,

        Defendants.



                  ORDER GRANTING IN PART AND DENYING IN PART
                      COMPETING MOTIONS FOR REHEARING

        THIS CAUSE came on for hearing on June 22, 2006, upon competing and timely filed motions

for rehearing of this Court's Order Allocating Attorney Fee and Enforcing Charging Lien dated

November 17, 2005, as well as on the attorney lien filed by Hendrik Uiterwyk, Esq. on behalf of his firm

of Abrahamson. Uiterwyk & Barnes (hereinafter "Uiterwyk"), who referred the c?se to Prates & Smith,

PLC and William S. Frates, II, P.A. (hereinafter collectively "Frates"). Appearing before me at the

hearing were William S. Frates, II, Esq., Daniel Snellings, Esq., Hendrik Uiterwyk, Esq., and (by

telephone) Terry M. Walcott, Esq. At issue was whether the undersigned's Order of November 17, 2005

was legally and factually correct.

        Upon review of the file and considering the arguments of counsel, it is clear to me that I

misunderstood the amount of attorney's fees generated by the settlement of the underlying case(s). I mis-

identified $239.553.38 as being the total amount of attorney's fees, rather than merely a portion of the

                                                    1
settlement proceeds retained in trust, after Walcott Law Firm, P.A. (hereinafter "Walcott") had already

collected $760,000 in attorney's fees. The $239,553.38 was retained in trust pending resolution of the

claims of other attorneys handling this case before and during Walcott's handling thereof. This Order is

intended to supplant and supersede the order of November 17, 2005, to the extent that it conflicts with

such prior Order, drafted by the undersigned, ruling on the issues presented at a hearing on November 8,

2005.

          I find that Mr. Walcott was an associate and a de facto employee of Prates during a significant

amount of time the underlying case was in progress. Mr. Walcott was paid a combination of annual

salary and bonuses of $150,000 or more per year to work on the firm's files, including the subject case

file. Mr. Walcott was compensated by Prates for work he performed on the subject case, which the

undisputed evidence shows was Mr. Walcott's most significant case while working with and for Prates.

The time spent by Mr. Walcott working on the subject case while employed by Prates is attributed to

Prates.

          I find that the hourly rates, as testified to and as set forth in the Affidavits filed by Mr. Prates and

Mr. Snellings, are reasonable based on the experience and type of complex products liability litigation

involved in this case and in accordance with the expert testimony of Mr. Uiterwyk. The hours expended

by Prates on the underlying case, prior to termination without cause, as set forth in Mr. Prates' Affidavit,

was sufficiently substantiated by the testimony of Mr. Prates and Mr. Snellings.

          Based on quantum meruit, Prates is entitled to two-thirds (2/3) of the monies being held in trust

by Walcott Law Firm, P.A., while Uiterwyk is entitled to one-third (1/3) of the funds being held in trust,

because of his referral and work-sharing contract with Prates. In other words, Mr. Walcott is directed to

disburse $159,702 to William S. Prates, H, P.A. for the undifferentiated claims of Prates & Smith, PLC

and William S. Prates, II, P.A., and to disburse the remaining $79,851 to Uiterwyk. Any and all interest

earned while in the Walcott trust account shall be paid to Prates and Uiterwyk in proportion to their award

above. Said disbursements shall be made within 20 days from the date of this Order.
        This division and distribution of funds is without prejudice to this Court's consideration of any of

the charging liens and claims of Prates, and/or the contractual claims and liens of Mr. Uiterwyk, in excess

of the funds held in trust and distributed to Prates and Uiterwyk. Both Prates and Uiterwyk have claims

pending against the fees already charged and collected by Walcott Law Firm, P.A., and the settlement

proceeds paid to the Plaintiffs. Any further hearing regarding attorneys fees and costs, being sought by

Prates and/or Uiterwyk, must be noticed to all Plaintiffs, since one or more of the lawyers in this case has

suggested that the Plaintiffs might have to repay some of their settlement monies to satisfy all the attorney

fees claims.

        It is so ORDERED this          day of July, 2006, at Plant City, Hillsborough County, Florida.
                                                                                               RIGIN,
                                                                                             ORIGINAL SIGNED
                                                                                             CONFORMED COPY
                                                                                               iNFOF

                                                                                                 JUL19
                                                                   CIRCUIT



Copies mailed to:

Terry M. Walcott, Esq. (Please forward a copy of this Order to all Plaintiffs)
Walcott Law Firm, P.A.
1841 Winding Ridge Circle
Palm Bay, Florida 32909

William S. Prates, II, Esq.
William S. Prates, II, P.A.
830 Azalea Lane
Vero Beach, Florida 32963

Hendrik Uiterwyk, Esq.
Abrahamson, Uiterwyk & Barnes
900 W. Platt Street
Tampa, Florida 33606
                                                                                                                           H
                                                                                              Page 1 nf 1
                    Bank of America, N A                                                      Acecmul Number
                    P O Box 25118                                                             BO P OA Enclosure's 0            47
                    Tmii]m FL 33622-51]8                                                      Sfdtf'meirt Period
                                                                                              11/01/05 through 11/30/05    015S7R]
                    1 888 BUSINESS (1 888 287 4537}




                                                       01075 001 SCM999
                    WALCOTT LAW FIRM
                    1841 WINDING RIDGE CIR SE
                    PALM BAY FL 32909-2316




               ^^-<H,^>»o^                                                          ,v-sj^^

                                                 Account Summary Information
Statement Period       11/01/05 through 11/30/05                          Statement Beginning Balance                224,431.00
Number of Deposits/Credits                     0                          Amount of Deposits/Credits                       0.00
Number of Withdrawals/Debits                   1                          Amount of Withdrawals/Debits                 3,272.54
                                                                          Statement Ending Balance                   221,158.46
Number of Enclosures                                    0                 Average Ledger Balance                     221,158.46
Number of Days in Cycle                                30                 Service Charge                                   0.00
                                                      Withdrawals and Debits
Cheeks

   Cheiifc -" , r       , • < • < "Date VX Bank";/':,'' '-
   Number ,           'Amount -Posted ^"'Bcfereii-ec-, •„
        2512            3,272.54     11/01 813106540213698

                                                      Daily Ledger Balajnces

Da^te ,

11/01               221,158.46
                                                                                                Pago ] of 2
                Bank of Amenta N A                                                              Acromil Number
                P 0 Box Z^llfi                                                                  El) P OA EiidnsiiTT                  •17
                Tampa, FL 336225118                                                             Rlatpnipin Period
                                                                                                12/01/01 tlnoug-L ]2/31/05        OJ7'IR77
                 1 888 BUSINESS (1 8K8 287 4(>S7)




                                                         03075 001 SCM999
                    WALCOTT LAW FIRM
                    1841 WINDING RIDGE CIR SE
                    PALM BAY FL 32909-2316




                                                                                                             %
;*,W& ;^-niv;1^^^V«A|PbW^^                                                                   X'-<f ';-,*'"       f?^ ,; "i
                                               Account Summary Information
itatemcnt Period        12/01/05 through 12/31/05                           Statement Beginning Balance                  221,158 46
I umber of Deposits/Credits                     0                           Amount of Deposits/Credits                         0.00
lumber of Withdrawals/Debits                    3                           Amount of Withdrawals/Debits                 221,158 46
                                                                            Statement Ending Balance                           000
dumber of Enclosures                                      0                 Average Ledger Balance                         94,737.17
dumber of Days in Cycle                                  31                 Service Charge                                      0.00
                                                       Withdrawals and Debits
)ther Debits

Sslcjlg^^^•^^^^•^i^^^^f^X^'-'-                                                                        "\~ " *".£"* 'Reference,,    ,'-
.2/08                4,000.00     FL Tlr cash withdrawal from Chk 9365                                             957512089951539
                                  Banking Ctr Malabar Banking Center #0001328 FL
                                  Confirmation* 4055340714
.2/14           200,000.00        FL Tlr transfer to Chk 8311                                                      957512147508147
                                  Banking Ctr Malabar Banking Center #0001328 FL
                                  Confirmation* 4572540492
.2/19               17,158.46     Agent Assisted transfer to Chk 8311                                              956912197500093
                                  Confirmation* 4994391042

                                                        Daily Ledger Balances

Date    n       t   "Balance                        * Date '" '' •      Balance ,
12/01           221,158 46                           12/14             17,158.46
L2/08           217.158 46                           12/19                  0.00
                                                                                                                                                         H
                                                                                                                    ?agc 1 of 3
                 Bank of A m c i i r a N                                                                            Aoooinil Number                          i
                 J ' O Box 251 I K                                                                                  EO ? O A Enclosures 0                        47
                 Tampa JFL 33(>22-511«                                                                              SralomcnL Pciiod
                                                                                                                    U/01/04 t h i o u g h 11/30/04       002340]
                 ] K004S2 1000
                 www bankofamc'i ir a roin




                 00006^66       1 AT       0.292 13       0190"i 001 SCM999 II 34
                 WALCOT LAW F I R M
                 TERRY M WALCOTT
                 1841 WINDING RIDGE CIR SE
                 PALM BAY FL 32909-2316




               Out fioc Online 1 Banking swviru allows vou lo check bciianrps, tiark account a c t i v i t y , pay bills and nioio
                       With Online Banking vou con also viei^ iv|> to IS icniitbs of tin:: statement
                                            E n i o l l at www bankoraniencacoin/smallbusmp&s

                                                 Business Econorny;Checkingt
                                                  Account Summary Information
Statement Period        11/01/04 through 11/30/04                                    Statement Beginning Balance                                     38,981.98
Number of Deposits/Credits                      3                                    Amount of Deposits/Credits                                      54,775.78
Number of Withdrawals/Debits                   31                                    Amount of Withdrawals/Debits                                    36,957.76
Number of Deposited Items                       2                                    Statement Ending Balance                                        56,800.00
Number of Enclosures                                       0                         Average Ledger Balance                                          42,978.41
Number of Davs in Cvclo                                   30                         Service Chares                                                       0.00

                                                          Deposits and Credits

Date,' '-
Posted '            Amount           Description                              '       •'        , ,- *     ' ' '•                 ' "•, Reference 'V"1 '^^ .
11/10                3,975.73        BkofAmcrica ATM 11/10 #000005515 Deposit                                                           946311100005515
                                     Malabar Be #2       Palm Bav       FL
11/17              50,000.00         Wire Type-Wire IN Date: 041117 Time:1352 Et                                                        903711170091859
                                     Trn:2004111700091859 Seq-0046600322Fo/209070
                                     Orig:Ncw Amsterdam Capital Par 10:668504630065
                                     Snd Bk J P Morgan Chase And Co ID:0002 Pmt Det:Sbf
                                     Of 04/11/17 Bnf /Biif/Contingcnt Investment
11/30                  800.00        Counter Credit                                                                                     813105940729890
                                                        "Withdrawals and Debits
Other Debits
Date                                                                                                                                    Bank " ,
Posted              Amount            Description                                                                                       Reference •
11/01                3 000.00         Online Banking transfer to Chk 6252                                                               957211017548790
                                      Confirmation?? 9265954190
11/01                  300.00         Pubhx          10/31 #000009049 Withdrwl                                                          946310310009049
                                      3450 Bavside Lake Palm Bav       FL



                                                                                                                                              ••fl    1-1
                                                                                                                                                                         !H
                                                                                                                                          Page ] of 3
                Bank of Amencci N A                                                                                                       Account Number
                P.O Box 25118                                                                                                             EO P O A Enclosures 0               47
                Tampa, FL 33622-511N                                                                                                      Statement Petiod
                                                                                                                                          01/01/05 through 01/33/05       0024649
                1 ROO 432.1000
                www baiikofanienca com




                 i,,!!,,,!,!!,!,,!!,,,!,!,,,,!,!,,!!,,,,!!,!!,,,!,,!,,,!!!!,,,!
                 00006900      1 AT       0.292 12           01904 001 SCM999 I 2
                 WALCDTT LAW FIRM
                 TERRY M WALCOTT
                 1841 WINDING RIDGE CIR SE
                 PALM BAY FL 32909-2316




               Oui free Online Banking service allows von to rliBck balances, track account activity, pay bills and moic
                       With Online Bunlcmjr vcru can also view up to ]8 months «f thi«s statement online.
                                           Euioll at. www bankofEinierir-.ci.cojn/smallbusiness


                                                                                                    K
                                                                                  -<   >• ^-   t        S   y;>">V~>   ***   J-j^X




                                                    Aceount Suminary Information
Statement Period       01/01/05 through 01/31/05                                               Statement Beginning Balance                                            13,335.00
Number of Deposits/Credits                     2                                               Amount of Deposits/Credits                                             60,000.00
Number of Withdrawals/Debits                  30                                               Amount of Withdrawals/Debits                                           36,685.00
                                                                                               Statement Ending Balance                                               36,650.00
Number of Enclosures                                          0                                Average Ledger Balance                                                 13,202.89
Number of Days in Cycle                                      31                                Service Charge                                                             22.79

                                                             Deposits and Credits




01/10                           10,000.00 Online Banking transfer from Chk 9365                                                                           957101107565666
                                          Confirmation# 5379255037
01/27                           50,000.00 Wire Type:Wirc IN Date: 050127 Time:1433 Et                                                                     903701270104112
                                          Trn:20050127Q0104112 Soq:OOS3600027Fo/259148
                                          Orig:Ncw Amsterdam Capital Par ID'668504630065
                                          Snd Bk.J P Morgan Chase And Co ID:0002 Pmt Det:Sbf
                                          Of 05/01/27 Bnf /Bnf/Contingent Investment
                                                           Withdrawals and Debits
Checks
:;                                                                                                               "'Date-1 -';?;-'
  '^r& "'"                      Date >
                       Amount • Posted
                                                    Bank.-.,.."
                                                    R-cfereucc
                                                                      "~~\
                                                                       -,' -
                                                                             " "| " 'Check*-, ,<" ~'~ '
                                                                                     Number /' -* , '& .-'Amount ^Posted *'* 1 Jlcsfcrence V '*""'•
        1154            5,000.00       01/13        813106640716220                                1157                              1,375.00    01/20      813106640242254
        1155               37.47       01/03        813104120864515                                1158                                732.09    01/20      813106600717135
        1156            1,638.00       01/18        813106740580568
                                                                                                       Page ] of 3
                Bank of America, N A                                                                   Account Number
                P 0 Box 25118                                                                          BO P OA Enclosures 0               47
                Tampa, FL 33622-5118                                                                   Statement Period
                                                                                                       04/01/05 through 04/30/05       0036721
                1 800 432 1000
                www.bankofamenca com




                UL.Uf.LISmU.mU..!
                00009490 1 AT 0.292 12              30904 001 SCM999
                WALCOTT LAW FIRM
                TERRY M WALCOTT
                1841 W I N D I N G RIDGE CIR SE
                PALH BAY FL 32909-2316




              Our fiee Online Banking service allows you to check balances, track account activity, pay bills and moie
                       With Online Banking you can also view up to 18 months of this statement upline.
                                          Enioll at www.bankofamenca.com/smallbusiness




                                              Account Summary Information
Statement Period       04/01/05 through 04/30/05                             Statement Beginning Balance                           15,600.00
Number of Deposits/Credits                     5                             Amount of Deposits/Credits                            62,604.40
Number of Withdrawals/Debits                  31                             Amount of Withdrawals/Debits                          33,204.40
                                                                             Statement Ending Balance                              45,000.00
Number of Enclosures                                  0                      Average Ledger Balance                                11,996.56
Number of Days in Cycle                              30                      Service Charge                                            69.20

                                                     Deposits and Credits




                                500.00 Online Banking transfer from Chk 7066                                             957204017504735
                                       Confirmation* 2368175525
                              1,000.00 BkofAmerica ATM 04/13 #000009424 Deposit                                          946304130009424
                                       Malabar Be #2       Palm Bay      FL
04/18                        10,150.00 Counter Credit                                                                    813105940455709
04/26                           954.40 BkofAmerica ATM 04/26 #000003112 Deposit                                          946304260003112
                                       Malabar Be #1       Palm Bay      FL
04/27                        50,000.00 Wire TyperWire IN Date: 050427 Time:1252 Et                                       903704270092864
                                       Trn:2005042700092864 Seq:0063600117Fo/237246
                                       Orig:New Amsterdam Capital Par ID:668504630065
                                       Snd Bk:Jpmorgan Chase Bank, N.A. ID:0002 Pmt DetrS
                                       Bf Of 05/04/27 Bnf /Bnf/Contingent Investment
                   Bank of America                                                                                               IH
                                                  •4                                                 Page 1 of 2
                   Bank of America, N.A.                                                             Account Number:
                   P.O. Box 251 IS                                                                   EO P OA Enclosures 0             47
                   Tampa, FL 33622-51) 8                                                             Statement Period
                                                                                                     10/01/05 through 10/31/05    00410B3
                   1 888 BUSINESS (I 888 287 4637)




                   I,,i!,,,I,!l,I,,il,..Munl,!,,II,„,!!,!!„,!=,h,,!!!!,,,!
                    00010006     1 AT    0.292 12        01904 001 SCM999
                    W A L C O T T LAW FIRM
                    1841 W I N D I N G R I D G E C I R SE
                    P A L M BAY FL 3 2 9 0 9 - 2 3 1 6




                                                  Account Summary Information
Statement Period       10/01/05 through 10/31/05                             Statement Beginning Balance                          0.67
Number of Deposits/Credits                     1                             Amount of Deposits/Credits                   1,715,518.34
Number of Withdrawals/Debits                   8                             Amount of Withdrawals/Debits                 1,491,088.01
                                                                             Statement Ending Balance                       224,431.00
Number of Enclosures                                       0                 Average Ledger Balance                          308,718.11
Number of Days in Cycle                                   31                 Service Charge                                        0.00

                                                          Deposits and Credits




10/05             1,715,518.34      Wire Type:Wire IN Date: 051005 Time:1205 Et                                      903710050098277
                                    Trn:2005100500098277 Seq:G0052782390401/003154
                                    Orig:Wilson Elser Moskowitz ID:000028050458
                                    Snd Bk:Citibank N.A. ID:021000089
                                                        Withdrawals and Debits
Checks



        2507          305,000.00        10/07 813106640460582                2513 *          27,715.86     10/13      813105541501515
        2511 *         16,020.94        10/21 813008940869879
' Preceding check (or checks) is outstanding, is included in summary listing, or has been included in a previous statement.
                                                                                                                  H
                                                                                      Page 2 of 2
                                                                                      Account Number-
                                                                                      BO P OA Enclosures 0             47
                  WALCOTT LAW FIRM                                                    Statement Period
                                                                                      10/01/05 through 10/31/05



 :^yr%v!,y &>;*'.*> ^:M-V-V. Public Service Trus^ Account ^, >->vf #sy;-y :;;.*, raff * i * ' »•#""',
                                                                                          * s

                                       Withdrawals and Debits - Continued
Other Debits

                                                                                     ;vVlvv:^?.f>^
PoBte^:|;>-/y;^;:>'4^.mo'unt"
10/07             368,977.71    Wire TypetWire Out Date:051007 Time:1321 Et                          903710070119595
                                Trn:2005100700119595 Service Ref:001608
                                BnftNew Amsterdam Capitol Part ID:668504630065
                                Bnf Bk:Jpmorgan Chase Bank, N. ID:021000021
                                Pmt Det:01051007001460Nn
10/07             760.000.00    FL Tlr transfer to Chk 8311                                          95751007751.1005
                                Banking Ctr Malabar Banking Center #0001328 FL
                                Confirmation* 8696026910
10/17               5,000.00    Wire Type:Wire Out Date:051017 Time:1540 Et                          903710170163942
                                Trn:2005101700163942 Service Ref:001743
                                Bnf:Shawn Mckinnon ID:15747006 Bnf Bk:Midflorida F
                                Cu ID:263179804 Pmt Det:01051017004750Nn
10/17               4,251.00    Counter Debit                                                        813106540689809
10/18               4,122.50    Counter Debit                                                        813106640787669

                                              Daily Ledger Balances

Dat6C!|^l5 t&^Balance^:; VlC^^X^Date^^^^Bal^n^ «^tl ^^' --Dale |3?c^X't^ Salaiico^; :
10/01                    0.67               10/13           253,825.44               10/21                224,431.00
10/05            1,715,519.01               10/17           244,574.44
10/07              281,541.30               10/18           240,451.94
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                                                                                                        Page 1 of 3
                 Bank of America, N.A                                                                   Account Number
                 P.O Box 25118                                                                          ED P OA Enclosures 0               47
                 Tampa, FL 33622-5118                                                                   Statement Period
                                                                                                        12/01/06 through 12/31/06       0043267
                 1.888.BUSINESS (1.888.2874637)
                 www bankofamerica.com




                 00011195 01 AT      0.308 12        3090^ 001 SCM999
                 WALCOTT LAW FIRM
                 TERRY M WALCOTT
                 1841 WINDING RIDGE CIR SE
                 PALM BAY FL 32909-2316



               Our free Online Banking service allows you to check balances, track account activity, pay bills and more.
                       With Online Banking you can also view up to 18 months of this statement online.
                                           Enroll at www.bankofamerica.com/srnallbusiness.




                                              Account Summary Information
Statement Period       12/01/06 through 12/31/06                              Statement Beginning Balance                               25.00
Number of Deposits/Credits                     1                              Amount of Deposits/Credits                            35,000.00
Number of Withdrawals/Debits                  14                              Amount of Withdrawals/Debits                          35,018.63
                                                                              Statement Ending Balance                                   6.37
Number of Enclosures                                   0                      Average Ledger Balance                                 2,029.94
Number of Days in Cycle                               31                      Service Charge                                            33.63

                                                      Deposits and Credits




12/07                        35,000.00 Wire Type:Wire IN Date: 061207 Time:1414 Et                                         903712070179795
                                       Trn:2006120700179795 Seq:341Hh04581700000/004249
                                       Orig:Plaintiff Support Service Snd Bk:Hsbc Bank US
                                       A ID:021001088 Pmt Det:If There Are Any Problems P
                                       Lease Contact Ordering Party. (Bkcd)Cred
                                                    Withdrawals and Debits
Other Debits



12/01                              5.00 Online Banking transfer to         Sav 4194                                        957212017546464
                                        Confirmation* 4987841081
12/07                         11,000.00 Online Banking transfer to         Chk 6252                                        957312077554859
                                        Confirmation* 5540715955
12/07                            500.00 Online Banking transfer to         Chk 6388                                        957312077553423
                                        Confirmation* 5540274235
12/07                            220.00 Online Banking transfer to         Chk 7066                                        957112077506060
                                        Confirmation* 5540690303
                                                                                                                                                                                             Page 2 of 3
                                                                                                                                                                                             Account Number«
                                                                                                                                                                                             EO P OA Enclosures 0                                                    47
                                                WALCOTT LAW FIRM                                                                                                                             Statement Period
                                                TERRY M WALCOTT                                                                                                                              12/01/06 through 12/31/06




                                                                                                  Withdrawals and Debits - Continued
  Other Debits

                          rJr^i: - A< =' --«;'/ v/ - - -v^; ,,;?1 -V-i;-'^, ; '-;<?'*> ^r%~^vBih^;;-i^ t-t-
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^^eameWKeii^^;:'-, ;*?• v^-mbbnt-De^mpti6ii ;/|« '- -',.?,' .'^'j;^ ;/^ *^:^£'T£'3K& ^^v^SeS^e^^f-^ .
  12/08                                                            6,000.00 Counter Debit                                                                                                                                         813106640661453
  12/08                                                            3,500.00 Wire TyperWire Out Date:061208 Time:1218 Et                                                                                                           903712080143026
                                                                             Trn:2006120800143026 Service Ref:001978
                                                                             Bnf.Bbtt Bank Barbados ID:36010374 Bnf BkrCitibank
                                                                             N A ID:021000089 Pmt Det:01061208001989Nn/ Ace/Fur
                                                                             Ther Credit A/C 4-4350658 //Doreen Walcott
  12/08                                                            1,900.00 Online Banking transfer to Chk 6252                                                                                                                   957112087550012
                                                                             Confirmation* 5588909935
  12/08                                                              400.00 Bkof America ATM 12/08 #000002722 Withdrwl                                                                                                            946312080002722
                                                                             Malabar Be #1      Palm Bay       FL
  12/11                                                            8,000.00 Online Banking transfer to Chk 6252                                                                                                                   957212117546393
                                                                             Confirmation* 5845054030
  12/12                                                            3,000.00 Online Banking transfer to Chk 6252                                                                                                                   957212127532555
                                                                             Confirmation* 5926218123
   12/13                                                              300.00 Online Banking transfer to Chk 6252                                                                                                                   957312137550408
                                                                             Confirmation* 6034903242
  12/14                                                                50.00 Online Banking transfer to Sav 4945                                                                                                                   957212147528587
                                                                             Confirmation* 6096394748
   12/15                                                               33.63 11/06 Acct Analysis Fee                                                                                                                               940312150000001
   12/20                                                              110.00 Online Banking transfer to Chk 6252                                                                                                                   957212207502210
                                                                             Confirmation* 6629078505

                                                                                                                     Daily Ledger Balances

                                                             s£^-fr~s$&9vibfxtv%9:;i&&$                               :S^<\'>«»t;r^«<£i«te'si i-s v^?-*" ;«i^'s>*-'^»j>^.-%feb^lri5*S X&Hj**£<;?> £«% IfeA*^ "? Vs W$ &^>- -."^P&nA
                                                                                                                                                                                                                   % ^st|^'$Baanfie?'l ,^
                                                                                                                                                                                                                           v v^ s%? . ..i •'> -.. ^V* •*•!#•' •> *•
                                                                                                                                                                                                                   -t*" >?••< •"* •-. •*
                                                        ^^^^^'^^^^^^^^^^j^^^^y^'^^s^^
   12/01                                             20.00      1 / 1
                                                                 21      3,500.00 12/14                                                                                                                                                             150.00
   12/07                                         23,300.00      12/12      500.00 12/15                                                                                                                                                             116.37
   12/08                                         11,500.00      1 / 3
                                                                 21        200.00 12/20                                                                                                                                                               6.37
- - e - 9 E , 3 5 6 P M , i u d o e s ^ t h •'loor                                :8133O73408




                 IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
                        IN AND FOR BDLLSBOROUGH COUNTY, FLORIDA

                                                     CIVIL DIVISION

   FELICIA SHEPHARD, individually, as personal
   representative of the estates of James Smith and
   Joyce M. Smith, and as mother and natural
   guardian of Jimmicia R. Smith and Carla A.
   Graham; CLEOPATRA PERRY EDMONDS,
   individually, as personal representative of the
   estate of Shawn R. McKinney HI, and as mother
   and natural guardian of Rodney D. E. Youn6 Jr.;
   and BRENDA SHEPHARD, as mother and
   natural guardian of Brenda L. Morrison,

                                 Plaintiffs,
                       vs.                                            Case Number: 02 04497
                                                                      Division H

   KUMHO TIRE U.S.A., INC.,
   KUMHO INDUSTRIAL CO., LTD., and
   GINGER D. DELMAS d/b/a JEAN's
   AUTO SALES,
                   Defendants.



                                                           ORDER

             THIS MATTER, having come on for hearing on the ex pane motion of Plaintiffs for

   permission partially to disburse settlement proceeds prior to adjudication of the charging lien of

   William S. Prates, II, P.A.,

             IT IS HEREBY ORDERED THAT

             Counsel for Plaintiffs is authorized to disburse to Plaintiffs seventy-five percent (75%) of

   the net proceeds (after deduction of attorney's fees and costs) reflected in the Closing Statements

   presented to, approved and placed under seal by the Court at the September 8, 2005, hearing on

   the joint motion to dismiss. The remaining 25% of the Plaintiffs' net proceeds shall be kept in


                                                                                                  THE FLORIDA BAR'S

                                                                                                        EXHIBIT
1-    e - 9 5 : 3 : 56PM : j u d g e s   5th   -floor                      ;8133O7   34-08           *   3/




     trast by counsel for Plaintiffs pending adjudication of the charging lien filed by William S.

     Prates, II, P.A.

               SO ORDERED




     Honorable William P. Levens
     Circuit Court Judge
                                1841 Winding Ridge Circle
                                   Palm Bav, FL 32909
                                   (321) 725 4535 Voice
                                    (321) 725 0229 Fax
                                     terrv\valcott'.a''hotmail.com

November 15, 2005

Hon. William P. Levens
Circuit Civil Division H
800 E. Twiggs Street, Rm. 520             VIA    FACSIMILE
Tampa, FL 3 3 602
                                 Re. Felicia Shephard et al v. Kumho Tire USA, Inc.. et al

Judge Levens:

As per the Court's request at the November 8, 2005, hearing on the William S. Prates II, P.A.
attorney's lien claim, the following are the amounts held in my trust account pursuant to the
Court's September 9, 2005, order:

                                 Felicia Shephard             $99,663.43
                                 Cleopatra Edmonds           $54,480.40
                                 Brenda Morrison             $ 7,681.81
                                 James Smith, Sr.             $46,490.43
                                 Shawn McKinnon              $24,178.81
                                 Jimmicia Smith              $ 7,058.50
                                 Carla Graham (minor)        $0
                                 Rodney Young (minor)        $0

Please note that the reason no funds were withheld for Carla Graham and Rodney Young is that
both are minors and the proceeds from their settlements went directly from Kumho Tire into their
structured settlements. Of course, Prates & Smith, PLC and William S. Prates II, P.A. did not
have attorney/client contracts with or relating to Rodney Young or Carla Graham.

In addition, note that I interpreted the Court's order literally and withheld funds for James Smith,
Sr. and Jimmicia Smith even though they did not have signed attorney/client contracts with
Prates & Smith, PLC or William S. Prates II, P.A. I also withheld funds for Shawn McKinnon
even though he did not have a signed attorney/client contract with Prates & Smith, PLC.

Furthermore, with regard to Shawn McKinnon and James Smith, Sr.. the Court should be aware
that I was able to persuade the Kumho defendants to add them to the complaint as beneficiaries
even though the four-year statute of limitations had expired on their claims, and this occurred
during the period the Walcott Law Firm, P.A. represented Plaintiffs.

Finally, I am hereby requesting that this letter be treated as CONFIDENTIAL and placed
                                                                                                THE FLORIDA BAR'S

                                                                                                       EXHIBIT

                                                                                                       D
UNDER SEAL by the Court in accordance with the PROTECTIVE ORDER in this case, and
consistent with the Court's prior treatment of other settlement related information in the record.

Regards,




Terry M. Walcott, Esq.


cc.     Sean McDonough, Esq.
        William S. Prates II, Esq.
                                                                                                                            Page 1 of 1
                   Bank of Anienca, N A                                                                                     A r c o u n t Number
                   P O Box 25118                                                                                            EO P OA Enclosures 0                      47
                   Trail]>u FL 33022-5118                                                                                   Sldtr-monl Period
                                                                                                                            11/01/05 tin 011gh 11/30/05            015878]
                   1 8R8 BUSINESS (1 K88 2R7 4637)




                                                      0107E 001 SCM999
                   WALCOTT LAW FIRM
                   1841 WINDING RIDGE CIR SE
                   PALM BAY FL 32909-2316




                                                                                   Account                                          •Si, A X., ^ - 5
                                                                                                                                                .




                                                Account Summary Information
Statement Period       11/01/05 through 11/30/05                                   Statement Beginning Balance                                            224,431.00
Number of Deposits/Credits                     0                                   Amount of Deposits/Credits                                                   0.00
Number of Withdrawals/Debits                   1                                   Amount of Withdrawals/Debits                                             3,272.54
                                                                                   Statement Ending Balance                                               221,158.46

Number of Enclosures                                   0                           Average Ledger Balance                                                 221,158.46
Number of Days in Cycle                               30                           Service Charge                                                               0.00
                                                     Withdrawals and Debits
Checks
v
      Check ,, >           - " 'Date' -;"',' Baflls^"' 1 is- ,,   "'•* " ; ,,       ^,*,L v „ .                                      ,--•' ' , , - , ' ' ,v -" v "
    ' Number ' >   '- ' Ambunt^ Posted' ' * llcfei'en "•'.'"/'      "' ' . '''-,    ""l -.-'-" ' \ -'•"?>>" •'   " 1 •:''      ,J     >^ '--,.-; " _ > ; ' ' .V,      -

        2512           3,272.54     11/01      813106540213698

                                                     Daily Ledger Balances

Date ' , ^
11/01              221.158.46




                                                                                                                                               THE FLORIDA BAR'S

                                                                                                                                                       EXHIBIT
                                                                                                                                          Page- 1 of 2
                            Bank of America N A                                                                                           Account NmnbtT
                            P 0 Box 2511R                                                                                                 R() P nA Emlosuic's 0           47
                                       , FL 33622 511 S                                                                                   Statement Period
                                                                                                                                          12/01/05 through 12/31/05    OJ7'W77
                            1 8K8 BUSINESS (1 SK8 287 4(>S7)




                                                                                 03075 001 SCM999
                            WALCOTT LAW FIRM
                            1841 WINDING RIDGE CIR SE
                            PALM BAY FL 32909-2316




 <, ~ "
          v ;,*',, ,, -,'•'' "- %i •<.>' ' ,> ,^/^v^ubVic5emce^Trust^Account-'"5/
          *x   '' ? A   v   ^     "r    *^X   '" i j *f
                                                                                                                              --" ;- -Vv- 4_ j, y -, -; ', \,'<^ ™r , v,
                                                                        Account Summary Information
Itatement Period       12/01/05 through 12/31/05                                                             Statement Beginning Balance                         221,158 46
lumber of Deposits/Credits                     0                                                             Amount of Deposits/Credits                                0.00
Jumber of Withdrawals/Debits                   3                                                             Amount of Withdrawals/Debits                        221,158 46
                                                                                                             Statement Ending Balance                                  0.00
•lumber of Enclosures                                                             0                          Average Ledger Balance                               94,737.17
•lumber of Days in Cycle                                                         31                          Service Charge                                            0.00
                                                                              Withdrawals and Debits
)ther Debits

Ss£                                                       D'escriptton"^,"'"-.:; •-/'/C'i";'*'l;iAt->' '^v% ,'^^,>^^'i '"^1't' >"'-'   '^', '" V-"'^'-"
                                                                                                                                                          JBank'HiV

.2/08                            4.000.00                 FL Tlr cash withdrawal from Chk 9365                                                             957512089951539
                                                          Banking Ctr Malabar Banking Center #0001328 FL
                                                          Confirmation* 4055340714
.2/14                       200,000.00                    FL Tlr transfer to Chk 8311                                                                      957512147508147
                                                          Banking Ctr Malabar Banking Center #0001328 FL
                                                          Confirmation* 4572540492
.2/19                           17,158.46                 Agent Assisted transfer to Chk 8311                                                              956912197500093
                                                          Confirmation* 4994391042

                                                                                Daily Ledger Balances

Date '                  '   . Balance _, -                                  Date       -           >• 'Balance                                                                 f




L2/01                       221,158.46                                      12/14                    17,158.46
L2/08                       217,158 46                                      12/19                        0.00
                                                                                                                                                  i-H
                                                                                                                   Page 1 of 3
                             Bank of America, N.A                                                                  Account Number
                             P.O. Box 25118                                                                        ED P OA Enclosures 0                 47
                             Tampa, FL 33622 5118                                                                  Statement Period
                                                                                                                   12/01/06 through 12/31/06       0043257
                             1.88S.BUSINESS (1.888.2874637)
                             www.bankofamenca com




                              00011193 01 AT             0 . 3 0 8 12    30904 001 SCM999
                              WALCOTT LAW FIRM
                              TERRY M WALCDTT
                              1841 WINDING RIDGE CIR SE
                              PALH BAY FL 32909-2316




                          Our free Online Banking service allows you to check balances, track account activity, pay bills and more
                                  With Online Banking you can also view up to 18 months of this statement online.
                                                      Enroll at www.bankofamenca.com/smallbusiness.




                                                                    Account Summary Information
Statement Period       12/01/06 through 12/31/06                                              Statement Beginning Balance                          25.00
Number of Deposits/Credits                     1                                              Amount of Deposits/Credits                       35,000.00
Number of Withdrawals/Debits                  14                                              Amount of Withdrawals/Debits                     35,018.63
                                                                                              Statement Ending Balance                              6.37
Number of Enclosures                                                      0                   Average Ledger Balance                            2,029.94
Number of Days in Cycle                                                  31                   Service Charge                                       33.63

                                                                         Deposits and Credits




 12/07                                        35,000.00 Wire Type:Wire IN Date: 061207 Time:1414 Et                                  903712070179795
                                                        Trn:2006120700179795 Seq:34lHh04581700000/004249
                                                        Orig:Plaintiff Support Service Snd Bk:Hsbc Bank US
                                                        A ID:021001088 Pmt Det:If There Are Any Problems P
                                                        Lease Contact Ordering Party. (Bkcd)Cred
                                                                        Withdrawals and Debits
 Other Debits
     'y&jsjj* R vfts't ,'AVJJ;. i,,'«,, -7 't,£",,. ?v -. -v' ;•:
     <•-' ^j^uywE=i,^ Y*j:s,H>^>- „' ,i«j«^ rj K< t
.^cwjc^ '~^' "^m3jer.<-% f„* ••' *J» tf < • ^-IS*' % !*« 1^
                     l^'nf > ^'^^f^!.-..'^ »--y^(b j;9^ y> -'^
^riSaaBa^te^/^vgj^^
          f



 12/01                                             5.00 Online Banking transfer to          Sav 4194                                 957212017546464
                                                        Confirmation* 4987841081
 12/07                                        11,000.00 Online Banking transfer to          Chk 6252                                 957312077554859
                                                        Confirmation* 5540715955
 12/07                                           500.00 Online Banking transfer to          Chk 6388                                 957312077553429
                                                        Confirmation* 5540274235
 12/07                                           220.00 Online Banking transfer to          Chk 7066                                 957112077506060
                                                        Confirmation* 5540690303
                                                                                                                                                             Page 2 of 3
                                                                                                                                                             Account Number
                                                                                                                                                             EO P OA Enclosures 0
                                   WALCOTT LAW FIRM                                                                                                          Statement Penod
                                   TERRY M WALCOTT                                                                                                           12/01/06 thiough 12/31/06



-YJ&S-,' ^yy^Si^^i, s^#^Mv|%t                                                                                                                                                   ^l^f^JI'^^^
 m^^^z^iff^/^^^
                                                                                    Withdrawals and Debits - Continued
Other Debits
                                                                                                                                                                         jf J
 Ti-ni' '*f%,r\. -sj-1-     i v ' '*'"<••"••'*•<'., '"-'• ,-' •',   ,. J s. " * - — • < * . ,/,*-   -,~-     '"   '•-., ,       -, > , . » : - ' » * - > . „ , '„ *,, , * < &.  :&-„-•«   t   ~—TTT^       ]
                                                                                                                   * < 4 > r i - --5 •*, -".r. •«<••; "--A^ -.: v > ~4^ ji-^> inahk^. -, ,_>•-'_/-.,.< ~
5 Jb/£wE=i ^^-•S^tLBIiQlJtlSl >^ "'^v'! ^l'**: v «•
                                                              ';f>'^" <t,V A" -^ '«.-'•*•> '»- '•- * •' -

 12/08                                                          6,000.00 Counter Debit                                                                                          813106640661453
 12/08                                                          3,500.00 Wire Type:Wire Out Date:061208 Time:1218 Et                                                            903712080143026
                                                                         Trn:2006120800143026 Service Ref:001978
                                                                         Bnf:Bbtt Bank Barbados ID:36010374 Bnf Bk:Citibank
                                                                         N A ID:021000089 Pmt Det:01061208001989Nn/Acc/Fur
                                                                         Ther Credit A/C 4-4350658 //Doreen Walcott
 12/08                                                          1,900.00 Online Banking transfer to Chk 6252                                                                    957112087550012
                                                                         Confirmation* 5588909935
 12/08                                                            400.00 BkofAmerica ATM 12/08 #000002722 Withdrwl                                                              946312080002722
                                                                         Malabar Be #1      Palrn Bay      FL
 12/11                                                          8,000.00 Online Banking transfer to Chk 6252                                                                    957212117546393
                                                                         Confirmation* 5845054030
 12/12                                                          3,000.00 Online Banking transfer to Chk 6252                                                                    957212127532555
                                                                         Confirmation* 5926218123
 12/13                                                            300.00 Online Banking transfer to Chk 6252                                                                    957312137550408
                                                                         Confirmation* 6034903242
 12/14                                                             50.00 Online Banking transfer to Sav 4945                                                                    957212147528587
                                                                         Confirmation* 6096394748
 12/15                                                             33.63 11/06 Acct Analysis Fee                                                                                940312150000001
 12/20                                                            110.00 Online Banking transfer to Chk 6252                                                                    957212207502210
                                                                         Confirmation* 6629078505

                                                                                                    Daily Ledger Balances



  12/01                                   20.00                                                12/11                   3,500.00                        12/14                                  150.00
  12/07                               23,300.00                                                12/12                     500.00                         12/15                                 116.37
  12/08                               11,500.00                                                12/13                     200.00                        12/20                                    6.37

				
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