Free Other Notice - District Court of Arizona - Arizona

Timothy A. Shimko (PRO HAC VICE) (OSBN 0006736) David A. Welling (PRO HAC VICE) (OSBN 0075934) TIMOTHY A. SHIMKO & ASSOCIATES 2010 Huntington Building 925 Euclid Ave. Cleveland, Ohio 44115 Tel. (216) 241-8300 Fax (216) 241-2702 Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

SHIMKO & PISCITELLI, et al., Plaintiffs,

v. PAUL WOODCOCK, et al., Defendants.

) ) ) ) ) ) ) ) ) ) )

Case No. CV-04-00078-FJM Judge Frederick J. Martone PLAINTIFF'S STATEMENT OF FACTS IN OPPOSITION TO DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

NOW COMES Affiant, Timothy A. Shimko, being first duly sworn, and having personal knowledge of the facts contained herein and being competent to testify to the matters hereto, states as follows: 1. I am a resident of the State of Ohio and I'm a practicing attorney in that state and at all times relevant I maintained my sole place of business in the State of Ohio under the name Shimko & Piscitelli. (T. Shimko Aff. at ¶ 1.) 2. 2. I have been member in good standing of the bar of the State of Ohio since 1976. For my entire career, I have concentrated my practice in the field of civil litigation. (T. Shimko Aff. at ¶ 2.) 3. I have extensive civil trial experience. I have tried well over a hundred jury trials to

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completion. In each of the last four years, I have been selected by my peers in the legal profession as one of Northeast Ohio's best lawyers, and last year was selected by my peers as one of Ohio's best lawyers. (T. Shimko Aff. at ¶ 3.) 4. I am also a Barrister in the Anthony J. Celebreeze Chapter of the American Inns of Court. (T. Shimko Aff. at ¶ 4.) 5. In December of 2000, Paul Woodcock asked me to attend a seminar he and his partners were presenting at Troon Country club. My schedule would not permit it and he suggested I send Mr. Piscitelli to the seminar. He agreed to pay Mr. Piscitelli's time and expenses. (T. Shimko Aff. at ¶ 5.) 6. Mr. Piscitelli attended the seminar and before leaving Arizona shared whatever thoughts he had about Defendants' business with one or more of the Defendants. requested to provide an opinion letter. (T. Shimko Aff. at ¶ 6.) 7. The Defendant, Paul Woodcock was at all times relevant an owner, officer and executive of CORF Management Services, LP (CMS) and CORF Licensing Services, LP (CLS). (T. Shimko Aff. at ¶ 7.) 8. The Defendant, Dr. Woodcock, along with others, through limited partnerships were the owners and officers of CMS and CLS. Dr. Woodcock and his partners, at all times relevant, appeared directly involved in the day to day activities of CMS and CLS. (T. Shimko Aff. at ¶ 8.) 9. The primary business of CORF Licensing Services [hereinafter CLS] was to create a demand for and to license the Defendants' business plan to individuals to start up, own and operate a Comprehensive Outpatient Rehabilitation Facility. (CORF) Under a consulting We were not

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agreement, the customers of CLS paid approximately $125,000 for CLS to advise and assist the customer in establishing a Medicare approved CORF. (T. Shimko Aff. at ¶ 9.) 10. Demand for CLS' services was generated by advertisements in publications with national distribution and over the internet. In the newspapers and on its website, CLS informed the investing public what a CORF was and what awaited the investor that would decide to own his or her own CORF. Potential investors were given an e-mail address and a telephone number, by which they could communicate with the Defendants, Goldfarb, Woodcock and Ross. (T. Shimko Aff. at ¶ 10.) 11. Potential investors or customers were initially steered to David Goldfarb, who would expand upon the benefits of owning and operating a CORF and answer any questions the customer had. If the customer remained interested, he or she would be invited to a daylong seminar at the Troon Country Club, at which they would be addressed by Dr. Guenther, Dr. Woodcock, David Goldfarb and Richard Ross. (T. Shimko Aff. at ¶ 11.) 12. These seminars took place approximately twice a month from 1999 to the middle of 2002, and were attended usually by six (6) to twelve (12) customers. (T. Shimko Aff. at ¶ 12.) 13. From 1999 up until the end of 2001, Woodcock, Ross, & Goldfarb attended these seminars, and gave talks and personally made representations to the groups on the services that CLS provided and on the successful results that could be expected. Dr. Woodcock, Richard Ross, and David Goldfarb would each address the group on separate topics. Before the seminar, during lunch, and after the seminar, these same individuals spoke with each of the potential customers and answered their questions and made further representations. Shimko Aff. at ¶ 13.) (T.

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14. The message each delivered collectively and individually was essentially the same; how easy it was to start up, how easy it was to operate, and how successful a CORF licensee would be. (T. Shimko Aff. at ¶ 14.) 15. In making their sales pitches, the Defendants relied heavily on success stories of other customers they had previously licensed. If, after the seminar, a potential customer was still interested, he or she would be invited to visit one of these several facilities that were represented by the Defendants to be successfully operating. The Licensee would provide a tour of the facility to the potential customer and explain how it worked and represent to the potential customer how successful the facility was. (T. Shimko Aff. at ¶ 15.) 16. Even prior to the time Defendants retained Plaintiff, Woodcock, Ross, and Goldfarb had been making cash payments to these "successful licensees," which in many cases they did not disclose to the potential customer. Plaintiff advised Defendants to discontinue such payments or to disclose the fact of such payments. (T. Shimko Aff. at ¶ 16.) 17. In March of 2003, evidence was disclosed that supported allegations that these supposedly "successful CORFs" were anything but, and that Ross, Goldfarb, Woodcock, and Guenther had been paying the owners of these facilities monthly subsidies to keep their facilities afloat, and that the representations of success were knowingly false. (T. Shimko Aff. at ¶ 17.) 18. In other words, documents surfaced late in Plaintiff's representation of the Defendants lending support to the claimants' allegations that Goldfarb, Ross, and Woodcock had been intentionally paying shills to misrepresent certain facts to potential customers to induce them to sign the licensing agreements and pay $125,000.00 per facility. (T. Shimko Aff. at ¶ 18.)

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19. The Defendants' business grew rapidly from 1999 through the first part of 2002. Throughout most of 2000 and all of 2001, Ross, Woodcock, Goldfarb, and Guenther were executing service agreements with customers at a minimum cost of $125,000 each, at a rate of 10 to 20 new contracts per month. (T. Shimko Aff. at ¶ 19.) 20. However, complaints from their earliest customers began to swell in the summer of 2001. The complaining customers alleged that the patients that were promised would arrive and fill their facilities to capacity did not do so in the numbers that Woodcock, Ross, and Goldfarb had represented to them. Referrals from the local physicians did not occur anywhere near the levels the Defendants had promised. Professional staff was not as easy to hire and retain as had been represented. And the alleged success stories told to them were claimed to have been fabricated. (T. Shimko Aff. at ¶ 20.) 21. With the number of complaints on the rise, in November of 2001, the Plaintiff was asked by Paul Woodcock to meet with him in Phoenix, Arizona to discuss representing his partners and him. (T. Shimko Aff. at ¶ 21.) 22. Dr. Guenther and Dr. Woodcock had previously retained the Plaintiff's services on a number of personal matters from 1991 to 1996 pending in Ohio and in Arizona unrelated to this matter. Defendants knew that Plaintiff had no previous experience in Medicare law; nor did Plaintiff represent that it did. Furthermore, Defendants already had a lawyer on staff that advised Defendants on Medicare issues. From years of prior experience,

Woodcock well knew that Shimko primarily represented plaintiffs. (T. Shimko Aff. at ¶ 22.) 23. The Plaintiff met with Dr. Guenther, Dr. Woodcock, David Goldfarb, and Richard Ross and was explained what the nature of the business that the Defendants were in, and the

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problems that they were presently facing, as described above. At this meeting, it was explained that the ownership of CLS on paper was structured in layers of limited partnerships, but that Drs. Guenther and Woodcock and Messrs. Ross and Goldfarb had hands on management duties and that the four of them were equal partners. Each was personally active in the management of the business' operations. (T. Shimko Aff. at ¶ 23.) 24. After explaining the nature of the operations and the extent of each of their individual involvements in the operations of the business, it was further explained that disenchanted customers started to make complaints several months back alleging that the Defendants had deliberately and intentionally misrepresented the true potential of CORFs by fabricating success stories to induce new investors, and by paying previous customers substantial sums of money to say good things about CORFs and CLS. It was in light of those issues that

Defendants sought Plaintiffs' professional opinion on their personal exposure to such allegations and claims. (T. Shimko Aff. at ¶ 24.) 25. The Plaintiff advised all of the Defendants that if such allegations were proven against them, then no corporate or limited partnership structure would shield them from personal liability. Each was advised that they would be personally responsible for their own

conduct and representations, if found to be fraudulent, and for the fraudulent activities of each other, if a combination or conspiracy among them could be proven. (T. Shimko Aff. at ¶ 25.) 26. At that meeting in November 2001, attended by Dr. Guenther, Dr. Woodcock, Dick Ross, and David Goldfarb, the Plaintiff was asked to jointly represent each of them, and their wives, personally in claims that were presently being made against them and in litigation they anticipated might soon be filed across the country. The principal issue with which

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Goldfarb, Ross, and Woodcock were concerned was their own potential personal liability. The ongoing welfare of CLS was not a consideration, if it did not provide them with a defense to their own personal exposure. (T. Shimko Aff. at ¶ 26.) 27. The Plaintiff agreed to jointly represent the Defendants and their wives, personally, in disputes that might arise nationwide. At the time of initial retention and for months thereafter, Plaintiff's instructions from Ross, Goldfarb, Guenther, and Woodcock at the time were to settle all claims in order to avoid litigation. (T. Shimko Aff. at ¶ 27.) 28. Under the circumstances present at that time, Plaintiff did not perceive the appearance of any conflict of interest that existed among Ross, Goldfarb, Woodcock and Guenther or that was likely to arise during the proceedings for which Plaintiff was retained, since the claims being leveled at the Defendants were for conduct and misrepresentations in which each of them had equally, directly, and cooperatively engaged. (T. Shimko Aff. at ¶ 28.) 29. Each of the Defendants spoke at the seminars. Each had personal and direct contact with the customers that relied upon their individual representations of almost certain success. Each was aware of payments that they had been making for over a two year period of time to individuals that the customers were alleging were acting as shills for the Defendants. (T. Shimko Aff. at ¶ 29.) 30. For purposes of convenience, the Plaintiff was requested to and did agree to submit billings for services rendered to the individual Defendants to CLS. However, at the time of the request, the Plaintiff advised each of the gentlemen that though he would submit his bills to CLS, he was looking to each of them for payment. (T. Shimko Aff. at ¶ 30.) 31. The Defendants agreed to be personally responsible for the fees and expenses incurred in the preparation and disposition of the claims against them. An hourly rate of $350.00 was

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agreed upon because the work Defendants were requesting the firm to do had the potential to and in fact did exhaust most of the resources of the firm for considerable periods of time, preventing it from taking on any new work. (T. Shimko Aff. at ¶ 31.) 32. Immediately upon retention, the Plaintiff's firm began to field an ever growing number of claims from customers of CLS. Everyone of the claims contained allegations of fraud and deceit directly attributable to specific representations that had allegedly been made by Dr. Guenther, Dr. Woodcock, Richard Ross, and David Goldfarb, which the customers were alleging had not turned out to be true or accurate. Plaintiff advised Ross, Woodcock, Guenther and Goldfarb to discontinue any further participation in the seminars. All

complied with the advice up until February o0f 2003 when Goldfarb again started to participate at the seminars, at the request of and with the full knowledge and approval of Ross, Woodcock and Guenther. (T. Shimko Aff. at ¶ 32.) 33. As previously stated, the initial instruction to Plaintiff from Defendants was to settle all claims. They did not want any lawsuits where discovery would be available. Before each case was settled, the matter was reviewed personally by each of the four partners. No settlement was paid without the partners having reviewed it and agreed to it. (T. Shimko Aff. at ¶ 33.) 34. It was only when the money ran out in the Spring of 2002 that Plaintiff was required to commence defending Defendants in litigation that rapidly grew to approximately forty (40) lawsuits, seeking tens of millions of dollars in damages. Although various other causes of action were pled in each of these lawsuits, the principal claims against the Defendants sounded most prominently in fraud and in RICO. (T. Shimko Aff. at ¶ 34.)

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35. Prior to that, Plaintiff had successfully negotiated and obtained settlements in over forty (40) other claims against the Defendants. Throughout this entire time, there was nothing in the representation that would have made Plaintiff perceive that the interests of the Defendants were at all adverse to each other or that they would become so during the proceedings for which Plaintiff was engaged. (T. Shimko Aff. at ¶ 35.) 36. To comply with local rules, the Plaintiff immediately associated with local counsel in Arizona and in the other states where litigation against the Defendants was commencing. In Arizona, the Plaintiff initially associated with Arizona attorney, Mr. Cameron Artigue, of the Phoenix firm of Gammage & Burnham. Later, in March of 2003, after the Defendants had stopped paying Plaintiff's invoices and after Plaintiff advised that he wished to withdraw from representation, the Defendants located and hired the Arizona law firm of Boates & Welty to ultimately take over the representation of the Defendants. (T. Shimko Aff. at ¶ 36.) 37. When the tide of the lawsuits could not be stemmed in the spring of 2002, and no more settlements could be paid, the Defendants jointly instructed the Plaintiff to use litigation strategies that would delay consideration of the cases on their merits so that the Defendants would have additional time to gather resources to settle the lawsuits. (T. Shimko Aff. at ¶ 37.) 38. This instruction was unnecessary as, the Claimants' counsel played into the hands of the Defendants' strategy when Claimant's counsel began to object to Plaintiff's participation as Defendants' counsel in the Arizona cases, pro hac vice. This had the desired effect of forcing almost all of the various proceedings to a grinding halt. As a consequence, production of discovery did not occur in any earnest until late February or early March of

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2003, within a month to a month and a half before Plaintiff was terminated. (T. Shimko Aff. at ¶ 38.) 39. From November 2001 until October 2002, the Plaintiff firm's invoices were paid. However, although sporadic payments were received by Plaintiff on Defendants' account up until January 2003, commencing as of October 17, 2002, the firm's invoices remain unpaid. (T. Shimko Aff. at ¶ 39.) 40. In January 2003, the Plaintiff contacted the Defendants and informed them that due to nonpayment of the firm's fees, the firm could no longer represent them and that the firm would be withdrawing as counsel. (T. Shimko Aff. at ¶ 40.) 41. In January 2003, after the firm of Gammage & Burnham withdrew as Defendants' local counsel for non-payment, the Defendants asked the Plaintiff to stay on the cases until they could locate new counsel, inducing the Plaintiff to do so with promises of imminent payment. (T. Shimko Aff. at ¶ 41.) 42. In March of 2003, the Defendants located another Phoenix firm; to-wit, Boates & Welty, to act as their new counsel. In March and April 2003, Plaintiff began and completed the process of transitioning all of the files to attorney Boates. (T. Shimko Aff. at ¶ 42.) 43. Upon completion of that process, in April of 2003, when the Plaintiff pressed the Defendants for payment on the firm's account, the Defendants refused and terminated their relationship with the Plaintiff. collect the outstanding fees. Shortly thereafter, the Plaintiff commenced this action to Defendants had never informed Plaintiff, prior to his

termination, that any of the individuals or that any of the CORF entities were preparing to file or facing bankruptcy. (T. Shimko Aff. at ¶ 43.)

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44. The work done by the Plaintiff's law firm was documented in detail in invoices sent to the Defendants. In the invoices, the work that was done was detailed, the date on which the work was done was plainly indicated, and the amount of time spent doing the work and the individual doing the work and that person's hourly rate were clearly described. (T. Shimko Aff. at ¶ 44.) 45. The invoices reveal that the Plaintiff's firm prepared various agreements, pleadings and motions on behalf of Ross, Goldfarb, Woodcock and their wives in each of the various settled claims and lawsuits. (T. Shimko Aff. at ¶ 45.) 46. Plaintiff was directed to research and advise the Defendants on issues that had nothing to do with the business of CLS. The firm's invoices for the months of November 2001 through January 2002 show that Plaintiff was directed to research and to generally advise the Defendants on the various laws of fraudulent conveyances and on the viability of various international trusts and offshore investments. (T. Shimko Aff. at ¶ 46.) 47. As to any conflict with Plaintiff's representation of CLS, it is important to keep in mind that CLS had no assets of any value and the Plaintiff's representation of CLS was merely a tool in Plaintiff's joint representation of Woodcock, Goldfarb, Ross, and Guenther, who were well aware and approved of the strategy that made CLS the first line of defense against the claims being made against them. (T. Shimko Aff. at ¶ 47.) 48. Shortly before Plaintiff's services were terminated by Defendants, the Plaintiff had a meeting with the attorney representing the plaintiffs in the underlying cases against the Defendants, Mr. Cheifitz. The purpose of the meeting was to see where the Plaintiffs were on the issue of settlement. (T. Shimko Aff. at ¶ 48.)

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49. Ross, Woodcock and Goldfarb were aware of the meeting and its purpose in advance of it. Plaintiff received no instructions from Goldfarb, Ross, Guenther, or Woodcock to offer anything in settlement from these Defendants, as the only purpose of the meeting was to find out from the Plaintiff's counsel what it would take to settle the case. (T. Shimko Aff. at ¶ 49.) 50. At that meeting, Plaintiff never made an offer to Mr. Cheifitz on behalf of Woodcock, Goldfarb, or Ross or on behalf of any of the other the Defendants, collectively or singly. (T. Shimko Aff. at ¶ 50.) 51. However, at that meeting, Mr. Cheifitz did inform Plaintiff for the first time that he was prepared to offer a different deal to Dr. Brill and Mr. Ritchie, who were officers of CMS / CLS, but not owners. Mr. Cheifitz indicated that he would be willing to drop these two gentlemen from the suits, if they would agree to cooperate and give him information and statements. (T. Shimko Aff. at ¶ 51.) 52. When that offer was made, the Plaintiff shortly thereafter notified Brill and Ritchie that they should seek independent counsel, as there did appear to be a conflict that arose caused by Mr. Cheifitz' offer. No such deal was ever offered with respect to the Defendants. (T. Shimko Aff. at ¶ 52.) 53. Ross, Goldfarb, Woodcock, and Guenther were advised of the results of the meeting. (T. Shimko Aff. at ¶ 53.) 54. Mr. Cheifitz never made any offer creating any conflict in the Plaintiff's joint representation of the Defendants; nor did he indicate that he would do so in the future. More importantly, Plaintiff made no offer on behalf of any his clients that created a conflict. (T. Shimko Aff. at ¶ 54.)

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55. In late 2002, Defendant Ross called Plaintiff in Cleveland and informed him that he had a short term cash problem and that he could not make payroll that week, and would I loan $250,000 to them. If I would wire the funds, he would and did write out five checks totaling $250,000 and backdated them several weeks. (T. Shimko Aff. at ¶ 55.) 56. Plaintiff was informed that all of the owners were aware of the request and how it would be paid back. This loan was more in line with a favor than it was a business transaction, as Defendants would now have the Court believe. Plaintiff charged no interest, and acted in the belief that he was helping a client out of a short term bind. (T. Shimko Aff. at ¶ 56.) 57. Undoubtedly, each of the Defendants knew about the loan, which was to serve a short-term cash flow issue for CLS. There was never any dispute between the parties about the purpose of the loan or as to the terms or as to how the Defendants were to repay it. It was a simple transaction and did not create any conflict. (T. Shimko Aff. at ¶ 57.) 58. The Defendants now suggest in this litigation for the first time that the favor that Plaintiff did for them when they were in a bind somehow created a conflict. It did not. (T. Shimko Aff. at ¶ 58.) 59. Regarding Defendants' allegation of a conflict of interest caused by Plaintiff's investment with the Defendants and at least eight other individuals in a project called Aztec Medical, is another re herring. (T. Shimko Aff. at ¶ 59.) 60. Plaintiff, along with 11 other individuals invested money and time in the Aztec Medical venture that ultimately came to grief. (T. Shimko Aff. at ¶ 60.) 61. However, as far as Plaintiff is aware, even up to today, Aztec Medical had absolutely no connection or relationship to the Defendants' CORF business or to the litigation that grew

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out of that business. These were two totally separate ventures; one having nothing to do with the other. (T. Shimko Aff. at ¶ 61.) 62. And, Plaintiff's investment in Aztec had no connection with or relationship to or impact upon the firm's representation of the Defendants in the underlying fraud cases. Plaintiff is aware of no evidence to show that there was any impact on Plaintiff's representation of Defendants caused by Plaintiff's investment along with Defendants and others in Aztec. (T. Shimko Aff. at ¶ 62.) 63. Even if there was the potential for conflict, Plaintiff is aware of no evidence that any potential conflict ever became a reality or occurred. (T. Shimko Aff. at ¶ 63.) 64. Under the same circumstances as Plaintiff, Gammage and Burnham represented Defendant jointly for almost as long as Plaintiff without complaint from the defendants. Additionally, under the same circumstances as Plaintiff, Attorney Craig Boates continued to represent these Defendants jointly in these cases against them for years afterwards without complaint. (T. Shimko Aff. at ¶ 64.) 65. Though the Defendants' interests might appear to be diverse now that they have been criminally indicted for their conduct in this venture, there was never anything to indicate that their interests were adverse or would become so in these civil matters, on which I and my firm represented them. (T. Shimko Aff. at ¶ 65.) 66. The Plaintiff's representation of the Defendants was never directly adverse to any of the other Defendants at any time. (T. Shimko Aff. at ¶ 66.) 67. Further, there was never a significant risk that the Plaintiff's representation of either Woodcock, Guenther, Ross or Goldfarb would be materially limited by the Plaintiff's

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responsibilities to any of the others, or to a former client or a third person or by a personal interest of the Plaintiff. (T. Shimko Aff. at ¶ 67.) 68. The positions and goals of the Defendants were too unified to allow for such a potential, and Plaintiff had no personal interest in the outcomes of the litigation or claims against the Defendants. (T. Shimko Aff. at ¶ 68.) 69. With respect to the loan to the Defendants in late 2002, the Plaintiff simply once loaned the Defendants money so that they could make payroll. The Plaintiff emergency wired the funds to Defendant Ross, and in exchange Ross delivered to Plaintiff a series of post-dated checks to repay it. The loan was interest fee. It was just a favor. (T. Shimko Aff. at ¶ 69.) 70. Turning to Aztec Medical, it was a start up business of a tissue recovery center in Mexico City. It was basically going to harvest tissue and import that tissue to the United States to make it available to tissue banks, blood banks, and organ banks. (T. Shimko Aff. at ¶ 70.) 71. I was a private investor in Aztec along with the Defendants and eight other people. As each of the Defendants were also investors, each of the Defendants knew about my investment in that company and had no objection to it. In fact, Paul Woodcock sought out my

involvement and investment. (T. Shimko Aff. at ¶ 71.) 72. There was no conflict arising out of Aztec Medical. As far as I knew, there were absolutely no connections between Aztec Medical and the CORF businesses. There was also no connection between Aztec and my firm's defense of the Defendants relating to their conduct with the CORF business. (T. Shimko Aff. at ¶ 72.) 73. I have never perjured myself in this case or in any other. Attached to the Complaint in this case are Plaintiff's invoices, which unequivocally disclose that Plaintiff provided Defendants with legal services for which Plaintiff billed Defendants in the amount of

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$675,886.50. Of that amount, the Plaintiff's invoices clearly show that Plaintiff received only $320,937.50 in total payments from Defendants, leaving a balance of $354,949.00 owed to Plaintiff. (T. Shimko Aff. at ¶ 73.) 74. Although the records of wire transfers and the checks produced in this case indicate total payments to Plaintiff in the amount of $593,826.80. However, what Defendant fails to understand or appreciate is that of the $593,826.80 in recorded payments, Plaintiff was presented with $272,500.00. Deducting the $272,500 in bad checks from the total record of payments leaves a balance of $321,326.80 which is just about what Plaintiff's invoices show Plaintiff was paid. (T. Shimko Aff. at ¶ 74.) 75. Relating to Defendants' attempt to exclude consideration of the fees charged for Mr. Piscitelli's work, it is now clear that Mr. Piscitelli was not avoiding service. Defendants simply never served him at a location where he was likely to be found. The location at which Defendants attempted service one time was neither Mr. Piscitelli's home nor his office. The address on Exhibit 1 (attached to Affidavit of Timothy A. Shimko in Opposition to Defendants' Motions for Summary Judgment), is neither the address of Mr. Piscitelli's home or office. Defendants attempted to serve Mr. Piscitelli in Geauga County, when his office is located in Cuyahoga County, some twenty-five miles away, and his home is located in Summit County, some thirty to forty miles away. (T. Shimko Aff. at ¶ 75.) 76. Defendants never requested Mr. Piscitelli's address from Plaintiff, and did not provide a copy of the subpoena to the Plaintiff, until after they filed their motion to compel. There is no evidence in the record that Mr. Piscitelli ever evaded service or even knew Defendants wanted to depose him. (T. Shimko Aff. at ¶ 76.)

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77. When Mr. Piscitelli left the partnership, for valuable consideration, he assigned his interests to whatever fees he had coming in this matter to Plaintiff. (See Exhibit 2 attached to Affidavit of Timothy A. Shimko in Opposition to Defendants' Motions for Summary Judgment.) Of the outstanding $354,949 in unpaid fees, only $121,820 are attributable to Mr. Piscitelli's services. (T. Shimko Aff. at ¶ 77.) 78. Starting in 2003, and continuing with my testimony at the Guenther trial and during my deposition, I have always admitted that an adjustment should be made on Mr. Welling's fees to $125/hr. (T. Shimko Aff. at ¶ 78.) RESPECTFULLY SUBMITTED on this 12th day of May, 2008. TIMOTHY A. SHIMKO & ASSOCIATES

By:

/s/ Timothy A. Shimko Timothy A. Shimko (OSBN 0006736) David A. Welling (OSBN 0075934) 2010 Huntington Building 925 Euclid Ave. Cleveland, Ohio 44115 Tel. (216) 241-8300 Fax (216) 241-2702 Attorneys for Plaintiffs

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COPY of the foregoing electronically filed and served this 12th day of May, 2008 upon: Roger L. Cohen, Esq. #004409 JABURG & WILK, PC 3200 North Central Ave., Ste. 2000 Phoenix, Arizona 85012 Phone: 602-248-1000 Counsel for Defendants Ross Richard J. McDaniel, Esq. 11811 N. Tatum Blvd., Ste. 1051 Phoenix, Arizona 84208 Counsel for Defendants Woodcock Milton and Kathi Guenther 3642 E. Rockwood Phoenix, Arizona 84032 Defendants in pro se David and Rhonda Goldfarb 11437 N. 53rd Place Scottsdale, Arizona 8525 Defendants in pro se

/s/ Mildred Pacheco

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