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Filing # 112267934 E-Filed 08/24/2020 01:52:33 PM
IN THE CIRCUIT COURT OF THE 15™ JUDICIAL CIRCUIT,
IN AND FOR PALM BEACH COUNTY, FLORIDA.
YENIS BATRES REYES, CASE NO.: 502019CA008242
DIVISION: AE
Plaintiff,
vs.
PERSONAL INJURY & ACCIDENT LAW CENTER;
BRANDON LABINER, ESQUIRE;
PAUL STEVEN LABINER, ESQUIRE;
and PAUL S. LABINER, ESQUIRE, P.A.;
Defendants.
/
DEFENDANTS’ MOTION FOR FINAL SUMMARY JUDGMENT
Defendants Personal Injury & Accident Law Center, P.A. (“PIALC”), Brandon Labiner,
Esquire (“BL”), Paul Steven Labiner, Esquire (“PL”) and Paul S. Labiner, P.A. (“PSL PA”) by
and through the undersigned attorney move for the entry of an Order of Final Summary
Judgment and further state:
Background
1. Plaintiff's Complaint alleges that she suffered damages as a direct and proximate
cause of Defendants’ negligence in representing her in two personal injury claims arising from
separate motor vehicle accidents that that occurred on March 21, 2014 and April 4, 2014,
respectively.
2. Plaintiff further alleges that in the course of their employment as attorneys for the
Plaintiff, the Defendants breached a duty by failing to take action to prevent the dismissals of the
two lawsuits related to the subject motor vehicle accidents before the statute of limitations had run.
3. Defendant PIALC attempted to settle both claims while they were in pre-litigation
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prior to the two accidents at issue. Furthermore, the Plaintiff failed to notify the Defendants that she
had undergone cervical, thoracic, lumbar and chest MRI examinations (taken between 03/1 1/14 -
03/14/14) which was JUST DAYS PRIOR TO MARCH 21, 2014 ACCIDENT, indicating the exact
same injuries she alleges to have sustained from these two subject automobile accidents. As such,
Plaintiff's past medical history made it extremely difficult to reach a settlement due to issues
involving the aggravation of prior injuries and Plaintiff's lack of credibility.
4. The Defendants were never even in Plaintiffs employ at the time that she is alleged
to have suffered damages. In March/April 2014, Plaintiff had an initial consultation for her motor
vehicle injury claims with the Law Office of Meltzer & Taylor, which was later reorganized into
PIALC on or about February 15, 2015. Defendant BL first met Plaintiff in person on March 15,
2018. Defendant PL first met Plaintiff in person on April 11, 2018.
5. On March 15, 2018 Plaintiff went to Defendant PIALC’s office, demanded a copy
of the files for both cases and terminated PIALC’s employment as her attorney with respect to all
cases that PIALC was handling on her behalf, including the 2 motor vehicle accidents in question.
Detendant BL’s 01/03/2020 deposition testimony supports the March 15, 2018 termination, to wit:
(Page 19, Lines 3-18)
Q: How long, approximately, did the Personal Injury and Accident Law Center
represent Ms. Reyes before one or both lawsuits were filed on her behalf for the 3/21
and the 4/4/14 accidents?
Wk ee ee a ne Yee ed en a
AS 1 QUEL Peneniver WILEH LILUSE Cases Wel WY UPCMeU, DULL KHUW UAL IVES.
Reyes fired the Personal Injury and Accident Law Center on March 15, 2018.
Q: Was that in writing or verbally?
A: That was verbally. She came to the office screaming profanities, shouting at
everyone. She requested a copy of her file, it was given to her, and she terminated
uD.
Page 2(166. The evidence is uncontroverted that Defendants PL and PSL PA were never
employed by the Plaintiff with respect to the underlying personal injury claims. Defendant PL’s
January 3, 2020 deposition testimony supports this proposition, to wit:
(@age 6, Line 12 ~ Page 7, Line 9)
Q: Were you also working in any capacity for the Personal Injury and Accident
Law Center at that time?
A: No.
Q: Okay. Were you listed on their letterhead at all, the Personal Injury and
Accident Law Center, back in 2018 in March or April?
A: No.
Q: Were you ever of counsel to that firm?
A: No.
Q: Okay. Are the firms operating out of the same office suite or separate office
suites?
A: Currently, out of the same office suite. Back in 2018, I believe there were two
office suites.
Q: Adjacent to one another?
A: Correct.
Q: Okay. Would the two firms utilize the same staff together; in other words, sort of
a pooling of staff?
A: Only bookkeeping.
Q: Only bookkeeping, okay. So would you have your own paralegals and your son's
compat utc aS Wit?
A: Correct.
7. Nonetheless, despite its termination as counsel of record, Defendant PIALC filed
two (2) separate Complaints for Damages with the statute of limitations about to run in both cases.
On March 21, 2018, Defendant PIALC filed Case No. 50-2018-CA-003483 (“Cordes Case”) and on
Page 3(16April 2, 2018 - Case No. 50-2018-CA-003955 (“Bluestone Case”).
8. The Plaintiff was invited to the Defendant’s law office for a meeting on April 11,
2018, where Plaintiff was informed that Defendant PIALC had filed the actions on her behalf
solely for the purpose of tolling the statute of limitations.
9. Defendant PL center a Certified Letter dated April 27, 2018 to Yenis Reyes (Receipt
#70143490000069846948) formally terminating Plaintiff as a client of the Defendants and
requesting that she seek the services of a new attorney. A copy of the Certified Letter (and
Certified Mail Receipt) from Paul Labiner, Esq. to the Plaintiff is attached hereto.
10. On August 2, 2018 Judge Curley entered an Order Directing Plaintiff to Effect
Service Upon Defendant(s) in the Bluestone Case or file a motion within 30 days showing good
cause why service of process had not occurred. On August 7, 2018 Judge Nutt entered the same
Order in the Cordes Case. Copies of both Orders are attached hereto.
iL. Upon receipt of the Orders described in the paragraph hereinabove, the Defendants
immediately forwarded copies of same to the Plaintiff. Copies of the cover letters sent to the
Plaintiff along with the Orders are attached hereto.
i2. On September 25, 201 8, 54 days atter issuing his Order and 176 days atter the
Complaint had been filed, Judge Curley entered an Order of Dismissal in the Bluestone Case. A
copy of the Order of Dismissal is attached hereto.
13. On December 14, 2018, 129 days after issuing his Order and 256 days after the
Complaint had been filed, Judge Nutt entered an Order of Dismissal in the Cordes Case. A copy of
the Order of Dismissal is attached hereto.
14. Plaintiff did not, pursuant to Fla. R. Civ. P. 1.530 or Fla. R. Civ. P. 1.540, move to
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Page 4[16Instead, Plaintiff filed this legal malpractice action against the Defendants six months later on June
25, 2019.
15. Moreover, Plaintiffs legal malpractice action also fails because there is no genuine
issue of fact that as a matter of law precludes summary judgment in favor of the Defendants on the
issue of breach of duty/negligence.
16. The deposition testimony of Brandon Labiner clearly demonstrates that he on behalf’
of Defendant PIALC took every precaution possible under very difficult circumstances to preserve
Plaintiff's rights to pursue her negligence actions by filing both complaints prior to the expiration of
the statute of limitations. Moreover, having been ostensibly fired by the Plaintiff, Defendants BL
and PIALC communicated to the Plaintiff in a timely manner her urgent need to effect service or
respond in some way to the two Orders Directing Plaintiff to Effect Service Upon Defendant(s)
entered by the Court in the Bluestone and Cordes cases. Mr. Labiner offered the following
testimony:
(Page 18, Lines 20-24,
Q: Okay. Now, with respect to Ms. Reyes, were two lawsuits filed on her behalf for
the March 21, 2014, 22 and the April 4, 2014, motor vehicle accidents?
A: It was simpiy to protect her from the statute of limitations expiring.
(Page 31, Lines 4-20)
Q: Now, when you received this order from Judge Curley on 8/2/18, you said
you sent it to Ms. Reyes?
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A? YES, AlUNY WILL @ ICLLer L1L0T! iy Her 01 HUW 1Uny sie Had pursuant vo We
order.
Q: Okay. Why didn't you file a motion to withdraw —
A: We didn't withdraw because she fired us on March 15, 2018, and took her file
with her.
Page 5(16(Page 28, Line 20 - Page 29, Line 11)
Q: Okay. And if you could refer over, Mr. Labiner, to part C of Exhibit 1, this is
Judge Curley! 's order dated 8/2/18 stating that 120 days has elapsed since the filing
of the complaint and the defendant has not been served with process and no court
order extending the time has been entered. At that time, did you receive a copy of
this order from Judge Curley?
A: Yes. And it was forwarded to Ms. Reyes the following day.
Q: Okay. Now, you did not file a motion to withdraw, correct?
A: She had fired us at that time, so I didn't have the ability to do so.
Q: Are you sure of that?
A: She had her file in her hands, and I am sure that she fired us on March 15, 2018,
yes.
(Page 35, Lines 6-13)
Q: Okay. Now, with respect to the Cordes case, it looks like Judge Nutt also issued
an order on that case on 8/7/18; is that true?
A: Yes.
Q: That would be G.
A: Yes. And it was also mailed to Ms. Reyes, probably the same day or afterwards --
or a day afterwards.
i7. At ail times, the Defendants attempted to heip the Piaintift preserve her rights
to pursue both cases. Unfortunately, Plaintiff chose to ignore Defendant PL’s correspondence
and failed to attempt to communicate by phone or email with the Defendants at any point
between April 2018 and December 2018.
18. Based on the undisputed evidence, Defendants did not breach any duty to the
Plaintiff given that the attorney-client relationship was orally terminated by the Plaintiff on
March 15, 2018. At the very latest, Plaintiffs termination was memorialized in the Certified
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Page 6(1619. Finally, there are no genuine issues of fact that should preclude the entry of an
order of summary judgment based on a complete lack of causation or damages resulting from
any actions of any of the Defendants.
20. After terminating the attorney-client relationship, the Plaintiff did nothing to
advance her two cases. Specifically, she did not attempt to obtain new counsel, effect service,
or file any sort of pro se response to the two Orders Directing Service. As such, Plaintiff and
Plaintiff alone is responsible for the situation that she now finds herself in.
Summary Judgment Standard
Florida Rule of Civil Procedure 1.510 provides the standard for entry of summary
judgment. Summary judgment shall be rendered forthwith [when the evidence shows] there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Fla. R. Civ. P. 1.510(c); Volusia Cnty. y. Aberdeen at Ormond Beach, L.P., 760
So.2d 126, 130 (Fla. 2000). The plaintiff must either factually refute the alleged affirmative
defenses or establish that they are legally insufficient to defeat summary judgment. See Knight
Energy Servs., inc. v. Amoco Oi Co., 660 So.2d 786, 788 (Fia. 4th DCA 19} the moving
party sustains its initial burden of proof by tendering competent evidence in support of the
motion, then the party opposing a motion for summary judgment must present evidence, not
simply legal argument, demonstrating the existence of a disputed issue of material fact. Fla. Bar.
v. Mogil, 763 So.2d 303, 307 (Fla. 2000).
The purpose of a motion to summary judgment is to determine if there is sufficient
evidence to justify a trial upon the issues made by the pleadings. Odham y. Foremost Dairies,
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Page 7[(16not be called, and the trier of law then determines the proper decision to be rendered. Jd. As such,
argument, rhetoric, speculation, and theories of counsel for the non-moving party are not
sufficient to prevent entry of a summary judgment. See Seaboard Systems R.R., Inc. v. Goforth,
545 So.2d 482 (Fla. 5th DCA 1989).
Argument
A. The Plaintiff cannot establish the existence of an attorney-client relationship
between herself or any one of the four Defendants when the alleged negligence took
place. In fact, the Plaintiff outright denies that one or more of the Defendants were
even employed by the Plaintiff at any point in time.
“In stating a claim for legal malpractice, it is not sufficient merely to assert an attorney-client
relationship. The plaintiff must also allege that a relationship existed between the parties with
respect to the acts or omissions upon which the malpractice claim is based.” Law Office of David
J. Stern, P.A. y. Sec. Nat’! Servicing Corp., 969 So.2d 962, 966 (Fla. 2007). The time of the
alleged negligent act or omission is the critical point for testing the scope and existence of the
attorney-client relationship. /d. Florida courts uniformly limit attorneys' liability for negligence
in the performance of their professional duties to clients with whom they share privity of
contract. Angel, Cohen & Rogovin v. Oberon Invest, N.V., 512 So.2d 192, 194 (Fla. 1987).
Under Florida law, an essential element of an attorney-client relationship is that there must
be some sort of consultation between the lawyer and the putative client. JBJ Inv. of South Fla.
r. Coat ne Mat Ae ET OT aM Atha ani0y n2-- at oe
AC, V. OOUL JMWle GFp., INC., ZI1 SU.IU 1/9, 1s / (Pld. 47 DUA 210). Keygardless OL a
putative client's subjective beliefs, there can be no attorney-client relationship when the client
does not consult with the attorney, especially when there is no contact between them. Thus, "an
actual consultation with a lawyer" is a prerequisite to forming an attorney-client relationship. /d.
at 177.
Page 8[16No proof has been offered by the Plaintiff that can indisputably show that any of the
Defendants or their staff and/or agents were employed at the time of the alleged negligence,
which is clearly demonstrated by Plaintiffs deposition testimony, to wit:
(Page 6, Lines I — 8)
Q. Good morning. Can you please state your name, for the record?
A. My name is Yenis Batres Reyes.
Q. And, Ms. Reyes, do you know who I am?
A. No. Can you state your name, please?
Q. Sure. My name is Brandon Labiner. I'm one of the defendants in this action.
(@age 13, Lines 4—15)
Q: And below your signature, is there an attorney’s signature? (See Yenis Reyes
Deposition Exhibit 1 - Authority to Represent & Fee Agreement, attached hereto).
A: I—Isee a signature.
Q: And whose signature is that?
A; Can you zoom it in, because I can’t see it?
Q: Absolutely.
A: I see it says Corey Meltzer.
Q: Does it say Paul Labiner?
A: I don’t see that there.
(@age 15, Lines 1-6)
Q: Did you enter into an agreement with anyone, other than Corey Meltzer, to
represent you for the March 21, 2014 accident?
A: The Labiner law firm.
Q: And do you have that signed agreement?
A: I don’t recall.
(age 38, Line 25 - Page 39, Lines 1-4).
Q: Did Paul Labiner represent you in 2015, when you received the $11,000s of
advancements?
A: I don’t recall receiving $11,000 and I don’t remember.
(Page 77, Line 20 — Page 78, Line 4)
G: Were aly attorneys at the Personal Injury & Acci
you, after April 11, 2018?
A: To my knowledge, my only representing attorney has been Paul Labiner.
Q. Was Brandon Labiner ever your attorney, after April 11, 2018?
A: I don't recall. He came into the picture later on.
aT 2 ds
nl Law Cellter repre:
Based on the foregoing, it is apparent that the Plaintiff is not able to state with any
certainty which Defendants specifically represented her in the two motor vehicle accidents
Page 9[16giving rise to this legal malpractice action. In fact, Plaintiff did not even recognize Brandon
Labiner when asked the same by him!
Furthermore, the undisputed evidence clearly shows that the attorney-client
relationship was verbally terminated by the Plaintiff on March 15, 2018. At the very latest,
Plaintiff's termination was memorialized in the Certified Letter (Receipt #
70143490000069846948) sent to the Plaintiff's home address dated April 27, 2018.
The attorney-client relationship was terminated. There was no privity of contract. The
Plaintiff was not a client of the Defendants when any alleged negligence took place. For these
reasons, Plaintiff is prohibited from bringing a legal malpractice claim, and Defendants’
Motion for Summary Judgment should be granted by this Honorable Court.
B. The Plaintiff cannot prove that the Defendants neglected any reasonable duty of
care, or that any alleged negligence was the direct and proximate cause of any
damages that Plaintiff may have sustained.
In order to prevail on an action for legal malpractice, a party must prove (1) the attorney’s
employment by the client, (2) his neglect of a reasonable duty and, (3) that such negligence
resulted in and was the proximate cause of loss to the client. Kates v. Robinson, 786 So.2d 61, 64
(Fla. 4" DCA 2001). It is only when these three elements co-exist that an action for legal
malpractice based on negligence will lay. Adams, George & Wood v. Travelers Ins. Co., 359 So.
2d 457 (Fla. 3d DCA 1978). Plaintiffs Complaint makes baseless allegations that the Defendants
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any evidence showing what specific acts/omissions by the Defendants constitute negligence, nor
can Plaintiff site to any binding caselaw which establish what duty of care was breached by the
defendants. Plaintiff's deposition testimony states the following:
(Page 81, Lines 13 — 25)
Q: Well, at what point in time, in the course of these events, were any of the defendants
Page 10/16in this malpractice case negligent?
A: I don't know.
Q: At what point in time, Ms. Reyes, in 2018, did any of the defendants in this case not
provide you with the duty of care that you believed you were owed?
A: I don't know.
Generally, the Court will find that Plaintiff’s deposition testimony is not at all credible, as
she was unable to provide any details of conversations with or events involving, any of the
Defendants regarding her case. The only thing that she uttered repeatedly was that she trusted
Paul Labiner. However, her “trust” of Mr. Labiner does not form a predicate for legal
malpractice absent the three essential elements of the cause of action.
In Home Furniture Depot, Inc. y. Entevor AB, 753 So.2d 653 (Fla. 4"°DCA 2000), the Court
held that a lawyer employed by a client owes a duty to the client to exercise the degree of
reasonable knowledge and skill which lawyers of ordinary ability and skill possess and exercise.
In addition, Rule 4-1.16 of the Florida Bar demonstrates how a former client’s interests are to be
protected, namely that “[u]pon termination of representation, a lawyer shall take steps to the
extent reasonably practicable to protect a client’s interest, such as giving reasonable notice to the
client, allowing time for employment of other counsel, surrendering papers and property to
which the citent is entitied, and refunding any advance payment of fee or expense that has not
been earned or incurred.” Fla. Bar. Rule. 4-1.16(d).
Following their termination as Plaintiff's counsel, the Defendants appear to have gone
beyond their ethical obligation to the Plaintiff by (a) providing her with a copy of her file; (b)
allowing time for employment of other counsel; (c) protecting her from the expiration of the
Statute of Limitations by filing the two Complaints; (d) further providing over six months for the
appearance of new counsel, or for the Plaintiff to appear pro se; and (e) timely forwarding the
tern Nedars Die.
two Uiaers wil
Page 11/16The Florida Bar Ethics Opinion 72-36 dated July 1, 1987 opines that in the case where a
client has disappeared and failed to communicate with his lawyer, the lawyer retained for
litigation by that client is not obligated to file suit to toll the running of the statute of limitations
if the lawyer has made a reasonable effort to locate the client and the client’s unavailability is not
the result of neglect on the part of the lawyer. However, the ethics opinion seems to suggest that
Defendants PIALC, BL, PL, and PSL PA were under no obligation to serve process for
Plaintiffs two automobile negligence cases , particularly when the Plaintiff failed to even
respond to Defendant PIALC’s letters regarding the Orders Directing Service- essentially
disappearing after the complaints were filed. As well, the Florida Bar also stated in that same
opinion that it would NOT be unethical for a lawyer for the attorney to file suit in order to toll
the statute of limitations-(which is the precise reason for Defendants doing so in the two
underlying personal injury lawsuits).
The Defendants in the instant action acted appropriately by extending a courtesy to the
Plaintiff to file the two complaints with a statute of limitations deadline looming even though
they had been discharged. At all times, even under the circumstances described in Plaintiffs
Compiaint, Defendants understood what their duty to the Piamntiif was and fuiftiied that duty.
Therefore, based upon the foregoing argument, this court must grant Defendants’ Motion for
Summary Judgment against the Plaintiff as a matter of law and due to the complete absence of
any genuine issue of material fact.
C. Plaintiff, Yenis Reyes, disregarded all correspondence sent to her by the Defendants
from April 2018 to December 2018, and outright failed to take any necessary
measures required to prevent the dismissal of her two personal injury lawsuits.
Summarv indoment is annronriate where the un uted facts conclu
Diresneneten B prmpenens 2 Sppe epee odian 7 wa
ively establish that the
sole cause of Plaintiff's injury was his/her own negligence. See Macclatchey y. HCA Health
Page 12/16Servs. of Fla., Inc., 139 $o.3d 970 (Fla 4th DCA 2014). See Jennaro v. Bonita-Fort Meyers
Corp., 752 So.2d 82, 83 (Fla 2d DCA 2000).
The existence of undisputed fact becomes even more telling when the deposition testimony
of the Plaintiff is reviewed. Generally, Ms. Reyes seems to have been overcome with a bout of
memory loss and naiveté during her deposition as she repeatedly stated throughout that she could
not remember or recall salient facts related to her case, as seen here:
(Page 82, Lines 2 ~ 12,
Q: Between April, 2018 and December of 2018, did you make any efforts to at least
access the court's records, or call Mr. Labiner, to see what the status of your case
was?
A: I don't remember, and I don't know that.
Q: Between the date of the accident, in 2014, and March and April of 2018, how many
times did you call the law office representing you?
A: I don't know the many times that I reached out.
(Page 84, Line 18 — Page 85, Line 8)
Q: Were you curious, at all, from April of 2018 to December of 2018, to find out how
your status of the case was going?
A: I don't know. I'm not an attorney. I don't know.
Q: I'm not asking if you are an attorney. I was asking if you were curious about the
status of your case?
A: I was concerned about my cases.
Q: And why didn't you call anyone at the defendants' office?
A: I called many times.
Q: Did you cali aiter April of 20187
A: I don't remember the dates or the times.
(age 86, Lines 3 - 12)
Q: Did you have any contacts with Mr. Labiner by email, in 2018?
A: Never. Never, that I recall. No.
Q: Did you have any contact with Mr. Labiner by fax, at any point in 2018?
A: No. Ne.
Q: Did you have any communication with Mr. Labiner by phone, at any point in
2018?
A: I don't remember.
The Defendants protected the Plaintiff against the statute of limitations by filing the two
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Page 13[16she was given a copy of her legal file. At the very latest, the attorney-client relationship was
terminated in writing via Defendant’s certified letter to Plaintiff dated April 27, 2018, long
before the Court even entered the Orders of Dismissal in Bluestone and Cordes. Since the
Plaintiff discharged the Defendants from the Bluestone and Cordes cases 206 days and 286 days
respectively, before the Orders of Dismissal were entered, the Plaintiff clearly had ample time to
locate new counsel or address the service issue on a pro se basis.
Plaintiff was clearly aware that neither PIALC, BL, PL nor PSL PA were acting as her legal
counsel after April 2018, evidenced by her failure communicate with the Defendants by phone,
email, or otherwise. Plaintiff failed to take any action to pursue either of her cases between April
2018 and December 2018, and she is therefore solely responsible for any damages allegedly
sustained. The lack of legal knowledge demonstrated by the Plaintiff at her deposition does not
excuse her from failing to make a reasonable effort to protect her own interests, nor does it create
any cause of action for legal malpractice. In this situation, an Order Granting Final Summary
Judgment is entirely appropriate.
D. Piaintif did not seek reitet pursuant to Fia. K. Civ. P. 1.530 or Fia. K. Civ. P. 1.540
from either of the two Orders of Dismissal executed by Judge Curley and Judge Nutt.
Instead, Plaintiff filed this legal malpractice action against the Defendants six months
later on June 25, 2019.
A cause of action for legal malpractice in the litigation context does not accrue until "the
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Huigation is ComCiuaca oy tinal juagiicnt Gita “ule iilal jUagiicit OCCUilICS lillal, Ticaning uae
the time for filing an appeal or post judgment motions has expired or, if an appeal was taken, the
underlying legal proceeding has been completed on appellate review. Silvestrone v. Edell, 721
So.2d 1173, 1175 (Fla. 1998); R.S.B. Ventures Inc, v. Berlowitz, 211 So.3d 259, 263 (Fla. 4th
DCA 2017). In Peat, Marwick, Mitchell & Co. v. Lane, 565 So.2d 1323 (Fla. 1990), the Florida
Page 14[16Supreme Court affirmed the Third District finding that a cause of action for professional
malpractice did not arise until "the existence of redressable harm has been established."
The provisions of Fla. R. Civ. P. 1.530 that control the time in which a motion for
rehearing must be filed do not apply to a motion to reconsider an interlocutory order. Because
the trial court retains inherent authority to reconsider any of its nonfinal rulings prior to entry of
the final judgment, a motion for reconsideration may be filed at any time before the entry of final
judgment. A trial court may sua sponte reconsider and amend or vacate its interlocutory orders
prior to final judgment. See Silvestrone at 1175.
Fla. R. Civ. P. 1.540(b) additionally provides a path of relief up to 1 year after the court’s
judgment, decree, order, or proceeding was entered or taken, permitting a court “on motion and
upon such terms as are just” to vacate an order due to mistake, inadvertence, excusable neglect,
newly discovered evidence, misconduct, or misrepresentation. Rule 1.540(b) does not limit the
power of a court to entertain an independent action to relieve a party from a judgment, decree,
order, or proceeding.
The Order(s) Dismissing the Unserved Defendants Pursuant to Rule 1.070(j) were entered
im the
by Judge Curley on 09 8 in the Biuestone case and by Judge Nutt on iZ
Cordes case. Said Orders were not an entry of final judgment, and neither Order stated that the
dismissals were entered with prejudice. Rule 1.540(b) allowed Ms. Reyes until to 09/25/2019 to
seek relief from Judge Curley’s dismissal order, and until 12/14/2019 to seek relief from Judge
Nutt’s dismissal order. Instead, Plaintiff Yenis Reyes wrongfully pursued this subject malpractice
action on June 25, 2019, prior to when redressable harm could be established. Plaintiff therefore did
not have standing to file this legal malpractice action against the Defendants on that date, and
Page 15[16WHEREFORE Defendants Personal Injury & Accident Law Center, P.A., Brandon Labiner,
Esq., Paul Steven Labiner, Esq., and Paul S. Labiner, P.A. respectfully requests that this
Honorable Court grant this Motion for Final Summary Judgment, and for such other relief as the
Court deems just and proper.
CERTIFICATE OF SERVICE
ICERTIFY that a true and correct copy of the foregoing has been furnished through the
Florida E-Filing Portal to Matthew D. Levy, Esq., 15300 Jog Road, Suite 103, Delray Beach, FL
33446, E-Mail: pleadings@metnickandlevy.com on this 24'" day of August, 2020.
Personal Injury & Accident Law Center, P.A.
!s/_ Brandon S. Labiner
BRANDON S. LABINER, ESQUIRE
FL Bar No: 123868
5499 N. Federal Highway, Suite K
Boca Raton, FL 33487
Phone: (561) 372-3800
Fax: (561) 300-3448
Pleadings@PIALawCenter.com
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Filing # 112267934 E-Filed 08/24/2020 01:52:33 PM IN THE CIRCUIT COURT OF THE 15™ JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA. YENIS BATRES REYES, CASE NO.: 502019CA008242 DIVISION: AE Plaintiff, vs. PERSONAL INJURY & ACCIDENT LAW CENTER; BRANDON LABINER, ESQUIRE; PAUL STEVEN LABINER, ESQUIRE; and PAUL S. LABINER, ESQUIRE, P.A.; Defendants. / DEFENDANTS’ MOTION FOR FINAL SUMMARY JUDGMENT Defendants Personal Injury & Accident Law Center, P.A. (“PIALC”), Brandon Labiner, Esquire (“BL”), Paul Steven Labiner, Esquire (“PL”) and Paul S. Labiner, P.A. (“PSL PA”) by and through the undersigned attorney move for the entry of an Order of Final Summary Judgment and further state: Background 1. Plaintiff's Complaint alleges that she suffered damages as a direct and proximate cause of Defendants’ negligence in representing her in two personal injury claims arising from separate motor vehicle accidents that that occurred on March 21, 2014 and April 4, 2014, respectively. 2. Plaintiff further alleges that in the course of their employment as attorneys for the Plaintiff, the Defendants breached a duty by failing to take action to prevent the dismissals of the two lawsuits related to the subject motor vehicle accidents before the statute of limitations had run. 3. Defendant PIALC attempted to settle both claims while they were in pre-litigation oa UL Was MT 4 tee tater a ta UNADIE 10 UO SO 1OF FEASOMS AUTIOULADIE LO UIE rau. OPECiICaLLy, ria oad 1aueU 10 Page 1{16 CHEN. DAIAARCACUAAIINTY Cl CHADAND ANAFY FILED naimnainnoen n4-£9.22 DAA PILL. PAL BLAU VUUINE TT, PL, OHI. DUUN, ULLIAN, vureti2ucy UL.ue.u0 Divdisclose her complete medical history, including the existence of an accident just eight (8) months prior to the two accidents at issue. Furthermore, the Plaintiff failed to notify the Defendants that she had undergone cervical, thoracic, lumbar and chest MRI examinations (taken between 03/1 1/14 - 03/14/14) which was JUST DAYS PRIOR TO MARCH 21, 2014 ACCIDENT, indicating the exact same injuries she alleges to have sustained from these two subject automobile accidents. As such, Plaintiff's past medical history made it extremely difficult to reach a settlement due to issues involving the aggravation of prior injuries and Plaintiff's lack of credibility. 4. The Defendants were never even in Plaintiffs employ at the time that she is alleged to have suffered damages. In March/April 2014, Plaintiff had an initial consultation for her motor vehicle injury claims with the Law Office of Meltzer & Taylor, which was later reorganized into PIALC on or about February 15, 2015. Defendant BL first met Plaintiff in person on March 15, 2018. Defendant PL first met Plaintiff in person on April 11, 2018. 5. On March 15, 2018 Plaintiff went to Defendant PIALC’s office, demanded a copy of the files for both cases and terminated PIALC’s employment as her attorney with respect to all cases that PIALC was handling on her behalf, including the 2 motor vehicle accidents in question. Detendant BL’s 01/03/2020 deposition testimony supports the March 15, 2018 termination, to wit: (Page 19, Lines 3-18) Q: How long, approximately, did the Personal Injury and Accident Law Center represent Ms. Reyes before one or both lawsuits were filed on her behalf for the 3/21 and the 4/4/14 accidents? Wk ee ee a ne Yee ed en a AS 1 QUEL Peneniver WILEH LILUSE Cases Wel WY UPCMeU, DULL KHUW UAL IVES. Reyes fired the Personal Injury and Accident Law Center on March 15, 2018. Q: Was that in writing or verbally? A: That was verbally. She came to the office screaming profanities, shouting at everyone. She requested a copy of her file, it was given to her, and she terminated uD. Page 2(166. The evidence is uncontroverted that Defendants PL and PSL PA were never employed by the Plaintiff with respect to the underlying personal injury claims. Defendant PL’s January 3, 2020 deposition testimony supports this proposition, to wit: (@age 6, Line 12 ~ Page 7, Line 9) Q: Were you also working in any capacity for the Personal Injury and Accident Law Center at that time? A: No. Q: Okay. Were you listed on their letterhead at all, the Personal Injury and Accident Law Center, back in 2018 in March or April? A: No. Q: Were you ever of counsel to that firm? A: No. Q: Okay. Are the firms operating out of the same office suite or separate office suites? A: Currently, out of the same office suite. Back in 2018, I believe there were two office suites. Q: Adjacent to one another? A: Correct. Q: Okay. Would the two firms utilize the same staff together; in other words, sort of a pooling of staff? A: Only bookkeeping. Q: Only bookkeeping, okay. So would you have your own paralegals and your son's compat utc aS Wit? A: Correct. 7. Nonetheless, despite its termination as counsel of record, Defendant PIALC filed two (2) separate Complaints for Damages with the statute of limitations about to run in both cases. On March 21, 2018, Defendant PIALC filed Case No. 50-2018-CA-003483 (“Cordes Case”) and on Page 3(16April 2, 2018 - Case No. 50-2018-CA-003955 (“Bluestone Case”). 8. The Plaintiff was invited to the Defendant’s law office for a meeting on April 11, 2018, where Plaintiff was informed that Defendant PIALC had filed the actions on her behalf solely for the purpose of tolling the statute of limitations. 9. Defendant PL center a Certified Letter dated April 27, 2018 to Yenis Reyes (Receipt #70143490000069846948) formally terminating Plaintiff as a client of the Defendants and requesting that she seek the services of a new attorney. A copy of the Certified Letter (and Certified Mail Receipt) from Paul Labiner, Esq. to the Plaintiff is attached hereto. 10. On August 2, 2018 Judge Curley entered an Order Directing Plaintiff to Effect Service Upon Defendant(s) in the Bluestone Case or file a motion within 30 days showing good cause why service of process had not occurred. On August 7, 2018 Judge Nutt entered the same Order in the Cordes Case. Copies of both Orders are attached hereto. iL. Upon receipt of the Orders described in the paragraph hereinabove, the Defendants immediately forwarded copies of same to the Plaintiff. Copies of the cover letters sent to the Plaintiff along with the Orders are attached hereto. i2. On September 25, 201 8, 54 days atter issuing his Order and 176 days atter the Complaint had been filed, Judge Curley entered an Order of Dismissal in the Bluestone Case. A copy of the Order of Dismissal is attached hereto. 13. On December 14, 2018, 129 days after issuing his Order and 256 days after the Complaint had been filed, Judge Nutt entered an Order of Dismissal in the Cordes Case. A copy of the Order of Dismissal is attached hereto. 14. Plaintiff did not, pursuant to Fla. R. Civ. P. 1.530 or Fla. R. Civ. P. 1.540, move to caal raliaf fram aithar af tha turn Oedare af Micmiacal = ad ber Trdve Crrlarr and Tdeo Nit Scex reuer om citer Or ule two Craers Gr Dismissai Executed oy suage Curey ana suage Nut. Page 4[16Instead, Plaintiff filed this legal malpractice action against the Defendants six months later on June 25, 2019. 15. Moreover, Plaintiffs legal malpractice action also fails because there is no genuine issue of fact that as a matter of law precludes summary judgment in favor of the Defendants on the issue of breach of duty/negligence. 16. The deposition testimony of Brandon Labiner clearly demonstrates that he on behalf’ of Defendant PIALC took every precaution possible under very difficult circumstances to preserve Plaintiff's rights to pursue her negligence actions by filing both complaints prior to the expiration of the statute of limitations. Moreover, having been ostensibly fired by the Plaintiff, Defendants BL and PIALC communicated to the Plaintiff in a timely manner her urgent need to effect service or respond in some way to the two Orders Directing Plaintiff to Effect Service Upon Defendant(s) entered by the Court in the Bluestone and Cordes cases. Mr. Labiner offered the following testimony: (Page 18, Lines 20-24, Q: Okay. Now, with respect to Ms. Reyes, were two lawsuits filed on her behalf for the March 21, 2014, 22 and the April 4, 2014, motor vehicle accidents? A: It was simpiy to protect her from the statute of limitations expiring. (Page 31, Lines 4-20) Q: Now, when you received this order from Judge Curley on 8/2/18, you said you sent it to Ms. Reyes? Ae Wee wt ta a te. nee Pe A? YES, AlUNY WILL @ ICLLer L1L0T! iy Her 01 HUW 1Uny sie Had pursuant vo We order. Q: Okay. Why didn't you file a motion to withdraw — A: We didn't withdraw because she fired us on March 15, 2018, and took her file with her. Page 5(16(Page 28, Line 20 - Page 29, Line 11) Q: Okay. And if you could refer over, Mr. Labiner, to part C of Exhibit 1, this is Judge Curley! 's order dated 8/2/18 stating that 120 days has elapsed since the filing of the complaint and the defendant has not been served with process and no court order extending the time has been entered. At that time, did you receive a copy of this order from Judge Curley? A: Yes. And it was forwarded to Ms. Reyes the following day. Q: Okay. Now, you did not file a motion to withdraw, correct? A: She had fired us at that time, so I didn't have the ability to do so. Q: Are you sure of that? A: She had her file in her hands, and I am sure that she fired us on March 15, 2018, yes. (Page 35, Lines 6-13) Q: Okay. Now, with respect to the Cordes case, it looks like Judge Nutt also issued an order on that case on 8/7/18; is that true? A: Yes. Q: That would be G. A: Yes. And it was also mailed to Ms. Reyes, probably the same day or afterwards -- or a day afterwards. i7. At ail times, the Defendants attempted to heip the Piaintift preserve her rights to pursue both cases. Unfortunately, Plaintiff chose to ignore Defendant PL’s correspondence and failed to attempt to communicate by phone or email with the Defendants at any point between April 2018 and December 2018. 18. Based on the undisputed evidence, Defendants did not breach any duty to the Plaintiff given that the attorney-client relationship was orally terminated by the Plaintiff on March 15, 2018. At the very latest, Plaintiffs termination was memorialized in the Certified T attas (Danaint # TN1A2AONNNNNGORALOARY cant ta DiaintifP shame addvace an Anvil 177 IN1@ LEUCT UNCC pe fui FOF UUUUUU OTUs TO) SCL LO Laid 9 ome auaress Oh Api 21, 2U10. Page 6(1619. Finally, there are no genuine issues of fact that should preclude the entry of an order of summary judgment based on a complete lack of causation or damages resulting from any actions of any of the Defendants. 20. After terminating the attorney-client relationship, the Plaintiff did nothing to advance her two cases. Specifically, she did not attempt to obtain new counsel, effect service, or file any sort of pro se response to the two Orders Directing Service. As such, Plaintiff and Plaintiff alone is responsible for the situation that she now finds herself in. Summary Judgment Standard Florida Rule of Civil Procedure 1.510 provides the standard for entry of summary judgment. Summary judgment shall be rendered forthwith [when the evidence shows] there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c); Volusia Cnty. y. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). The plaintiff must either factually refute the alleged affirmative defenses or establish that they are legally insufficient to defeat summary judgment. See Knight Energy Servs., inc. v. Amoco Oi Co., 660 So.2d 786, 788 (Fia. 4th DCA 19} the moving party sustains its initial burden of proof by tendering competent evidence in support of the motion, then the party opposing a motion for summary judgment must present evidence, not simply legal argument, demonstrating the existence of a disputed issue of material fact. Fla. Bar. v. Mogil, 763 So.2d 303, 307 (Fla. 2000). The purpose of a motion to summary judgment is to determine if there is sufficient evidence to justify a trial upon the issues made by the pleadings. Odham y. Foremost Dairies, 190 OA 9A 604 (Bln 1061) Whan a 120 90.20 Jou Wid. 1701). Wiel a ad tha teian af £ faate has af fant nad CG, ule WIeT Or race CCG haan 1acis nas OCC Page 7[(16not be called, and the trier of law then determines the proper decision to be rendered. Jd. As such, argument, rhetoric, speculation, and theories of counsel for the non-moving party are not sufficient to prevent entry of a summary judgment. See Seaboard Systems R.R., Inc. v. Goforth, 545 So.2d 482 (Fla. 5th DCA 1989). Argument A. The Plaintiff cannot establish the existence of an attorney-client relationship between herself or any one of the four Defendants when the alleged negligence took place. In fact, the Plaintiff outright denies that one or more of the Defendants were even employed by the Plaintiff at any point in time. “In stating a claim for legal malpractice, it is not sufficient merely to assert an attorney-client relationship. The plaintiff must also allege that a relationship existed between the parties with respect to the acts or omissions upon which the malpractice claim is based.” Law Office of David J. Stern, P.A. y. Sec. Nat’! Servicing Corp., 969 So.2d 962, 966 (Fla. 2007). The time of the alleged negligent act or omission is the critical point for testing the scope and existence of the attorney-client relationship. /d. Florida courts uniformly limit attorneys' liability for negligence in the performance of their professional duties to clients with whom they share privity of contract. Angel, Cohen & Rogovin v. Oberon Invest, N.V., 512 So.2d 192, 194 (Fla. 1987). Under Florida law, an essential element of an attorney-client relationship is that there must be some sort of consultation between the lawyer and the putative client. JBJ Inv. of South Fla. r. Coat ne Mat Ae ET OT aM Atha ani0y n2-- at oe AC, V. OOUL JMWle GFp., INC., ZI1 SU.IU 1/9, 1s / (Pld. 47 DUA 210). Keygardless OL a putative client's subjective beliefs, there can be no attorney-client relationship when the client does not consult with the attorney, especially when there is no contact between them. Thus, "an actual consultation with a lawyer" is a prerequisite to forming an attorney-client relationship. /d. at 177. Page 8[16No proof has been offered by the Plaintiff that can indisputably show that any of the Defendants or their staff and/or agents were employed at the time of the alleged negligence, which is clearly demonstrated by Plaintiffs deposition testimony, to wit: (Page 6, Lines I — 8) Q. Good morning. Can you please state your name, for the record? A. My name is Yenis Batres Reyes. Q. And, Ms. Reyes, do you know who I am? A. No. Can you state your name, please? Q. Sure. My name is Brandon Labiner. I'm one of the defendants in this action. (@age 13, Lines 4—15) Q: And below your signature, is there an attorney’s signature? (See Yenis Reyes Deposition Exhibit 1 - Authority to Represent & Fee Agreement, attached hereto). A: I—Isee a signature. Q: And whose signature is that? A; Can you zoom it in, because I can’t see it? Q: Absolutely. A: I see it says Corey Meltzer. Q: Does it say Paul Labiner? A: I don’t see that there. (@age 15, Lines 1-6) Q: Did you enter into an agreement with anyone, other than Corey Meltzer, to represent you for the March 21, 2014 accident? A: The Labiner law firm. Q: And do you have that signed agreement? A: I don’t recall. (age 38, Line 25 - Page 39, Lines 1-4). Q: Did Paul Labiner represent you in 2015, when you received the $11,000s of advancements? A: I don’t recall receiving $11,000 and I don’t remember. (Page 77, Line 20 — Page 78, Line 4) G: Were aly attorneys at the Personal Injury & Acci you, after April 11, 2018? A: To my knowledge, my only representing attorney has been Paul Labiner. Q. Was Brandon Labiner ever your attorney, after April 11, 2018? A: I don't recall. He came into the picture later on. aT 2 ds nl Law Cellter repre: Based on the foregoing, it is apparent that the Plaintiff is not able to state with any certainty which Defendants specifically represented her in the two motor vehicle accidents Page 9[16giving rise to this legal malpractice action. In fact, Plaintiff did not even recognize Brandon Labiner when asked the same by him! Furthermore, the undisputed evidence clearly shows that the attorney-client relationship was verbally terminated by the Plaintiff on March 15, 2018. At the very latest, Plaintiff's termination was memorialized in the Certified Letter (Receipt # 70143490000069846948) sent to the Plaintiff's home address dated April 27, 2018. The attorney-client relationship was terminated. There was no privity of contract. The Plaintiff was not a client of the Defendants when any alleged negligence took place. For these reasons, Plaintiff is prohibited from bringing a legal malpractice claim, and Defendants’ Motion for Summary Judgment should be granted by this Honorable Court. B. The Plaintiff cannot prove that the Defendants neglected any reasonable duty of care, or that any alleged negligence was the direct and proximate cause of any damages that Plaintiff may have sustained. In order to prevail on an action for legal malpractice, a party must prove (1) the attorney’s employment by the client, (2) his neglect of a reasonable duty and, (3) that such negligence resulted in and was the proximate cause of loss to the client. Kates v. Robinson, 786 So.2d 61, 64 (Fla. 4" DCA 2001). It is only when these three elements co-exist that an action for legal malpractice based on negligence will lay. Adams, George & Wood v. Travelers Ins. Co., 359 So. 2d 457 (Fla. 3d DCA 1978). Plaintiffs Complaint makes baseless allegations that the Defendants Semichan dad” har narcn: imismanweca wer personas aime fen Marah & Ane] W01A bat che ie nnahle ta neauide YY Crainis Wom waren c mpi zur, Out Sue 15 Unadie WO proviae any evidence showing what specific acts/omissions by the Defendants constitute negligence, nor can Plaintiff site to any binding caselaw which establish what duty of care was breached by the defendants. Plaintiff's deposition testimony states the following: (Page 81, Lines 13 — 25) Q: Well, at what point in time, in the course of these events, were any of the defendants Page 10/16in this malpractice case negligent? A: I don't know. Q: At what point in time, Ms. Reyes, in 2018, did any of the defendants in this case not provide you with the duty of care that you believed you were owed? A: I don't know. Generally, the Court will find that Plaintiff’s deposition testimony is not at all credible, as she was unable to provide any details of conversations with or events involving, any of the Defendants regarding her case. The only thing that she uttered repeatedly was that she trusted Paul Labiner. However, her “trust” of Mr. Labiner does not form a predicate for legal malpractice absent the three essential elements of the cause of action. In Home Furniture Depot, Inc. y. Entevor AB, 753 So.2d 653 (Fla. 4"°DCA 2000), the Court held that a lawyer employed by a client owes a duty to the client to exercise the degree of reasonable knowledge and skill which lawyers of ordinary ability and skill possess and exercise. In addition, Rule 4-1.16 of the Florida Bar demonstrates how a former client’s interests are to be protected, namely that “[u]pon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interest, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the citent is entitied, and refunding any advance payment of fee or expense that has not been earned or incurred.” Fla. Bar. Rule. 4-1.16(d). Following their termination as Plaintiff's counsel, the Defendants appear to have gone beyond their ethical obligation to the Plaintiff by (a) providing her with a copy of her file; (b) allowing time for employment of other counsel; (c) protecting her from the expiration of the Statute of Limitations by filing the two Complaints; (d) further providing over six months for the appearance of new counsel, or for the Plaintiff to appear pro se; and (e) timely forwarding the tern Nedars Die. two Uiaers wil Page 11/16The Florida Bar Ethics Opinion 72-36 dated July 1, 1987 opines that in the case where a client has disappeared and failed to communicate with his lawyer, the lawyer retained for litigation by that client is not obligated to file suit to toll the running of the statute of limitations if the lawyer has made a reasonable effort to locate the client and the client’s unavailability is not the result of neglect on the part of the lawyer. However, the ethics opinion seems to suggest that Defendants PIALC, BL, PL, and PSL PA were under no obligation to serve process for Plaintiffs two automobile negligence cases , particularly when the Plaintiff failed to even respond to Defendant PIALC’s letters regarding the Orders Directing Service- essentially disappearing after the complaints were filed. As well, the Florida Bar also stated in that same opinion that it would NOT be unethical for a lawyer for the attorney to file suit in order to toll the statute of limitations-(which is the precise reason for Defendants doing so in the two underlying personal injury lawsuits). The Defendants in the instant action acted appropriately by extending a courtesy to the Plaintiff to file the two complaints with a statute of limitations deadline looming even though they had been discharged. At all times, even under the circumstances described in Plaintiffs Compiaint, Defendants understood what their duty to the Piamntiif was and fuiftiied that duty. Therefore, based upon the foregoing argument, this court must grant Defendants’ Motion for Summary Judgment against the Plaintiff as a matter of law and due to the complete absence of any genuine issue of material fact. C. Plaintiff, Yenis Reyes, disregarded all correspondence sent to her by the Defendants from April 2018 to December 2018, and outright failed to take any necessary measures required to prevent the dismissal of her two personal injury lawsuits. Summarv indoment is annronriate where the un uted facts conclu Diresneneten B prmpenens 2 Sppe epee odian 7 wa ively establish that the sole cause of Plaintiff's injury was his/her own negligence. See Macclatchey y. HCA Health Page 12/16Servs. of Fla., Inc., 139 $o.3d 970 (Fla 4th DCA 2014). See Jennaro v. Bonita-Fort Meyers Corp., 752 So.2d 82, 83 (Fla 2d DCA 2000). The existence of undisputed fact becomes even more telling when the deposition testimony of the Plaintiff is reviewed. Generally, Ms. Reyes seems to have been overcome with a bout of memory loss and naiveté during her deposition as she repeatedly stated throughout that she could not remember or recall salient facts related to her case, as seen here: (Page 82, Lines 2 ~ 12, Q: Between April, 2018 and December of 2018, did you make any efforts to at least access the court's records, or call Mr. Labiner, to see what the status of your case was? A: I don't remember, and I don't know that. Q: Between the date of the accident, in 2014, and March and April of 2018, how many times did you call the law office representing you? A: I don't know the many times that I reached out. (Page 84, Line 18 — Page 85, Line 8) Q: Were you curious, at all, from April of 2018 to December of 2018, to find out how your status of the case was going? A: I don't know. I'm not an attorney. I don't know. Q: I'm not asking if you are an attorney. I was asking if you were curious about the status of your case? A: I was concerned about my cases. Q: And why didn't you call anyone at the defendants' office? A: I called many times. Q: Did you cali aiter April of 20187 A: I don't remember the dates or the times. (age 86, Lines 3 - 12) Q: Did you have any contacts with Mr. Labiner by email, in 2018? A: Never. Never, that I recall. No. Q: Did you have any contact with Mr. Labiner by fax, at any point in 2018? A: No. Ne. Q: Did you have any communication with Mr. Labiner by phone, at any point in 2018? A: I don't remember. The Defendants protected the Plaintiff against the statute of limitations by filing the two Camnlains lan oftar Dinintiffs varhal tarmin, af tha Dafandante an Marah 16 2010 whan Comipiaiits CVoH ante? Piaiitilis Veroar (eimimauon Of ue DCHGaNS Oa Maren 15, 2010 wit Page 13[16she was given a copy of her legal file. At the very latest, the attorney-client relationship was terminated in writing via Defendant’s certified letter to Plaintiff dated April 27, 2018, long before the Court even entered the Orders of Dismissal in Bluestone and Cordes. Since the Plaintiff discharged the Defendants from the Bluestone and Cordes cases 206 days and 286 days respectively, before the Orders of Dismissal were entered, the Plaintiff clearly had ample time to locate new counsel or address the service issue on a pro se basis. Plaintiff was clearly aware that neither PIALC, BL, PL nor PSL PA were acting as her legal counsel after April 2018, evidenced by her failure communicate with the Defendants by phone, email, or otherwise. Plaintiff failed to take any action to pursue either of her cases between April 2018 and December 2018, and she is therefore solely responsible for any damages allegedly sustained. The lack of legal knowledge demonstrated by the Plaintiff at her deposition does not excuse her from failing to make a reasonable effort to protect her own interests, nor does it create any cause of action for legal malpractice. In this situation, an Order Granting Final Summary Judgment is entirely appropriate. D. Piaintif did not seek reitet pursuant to Fia. K. Civ. P. 1.530 or Fia. K. Civ. P. 1.540 from either of the two Orders of Dismissal executed by Judge Curley and Judge Nutt. Instead, Plaintiff filed this legal malpractice action against the Defendants six months later on June 25, 2019. A cause of action for legal malpractice in the litigation context does not accrue until "the Ltleatinn je nanaladad hi final Indemant!! and Mthe Gaal indamant hanamas final manning thas Huigation is ComCiuaca oy tinal juagiicnt Gita “ule iilal jUagiicit OCCUilICS lillal, Ticaning uae the time for filing an appeal or post judgment motions has expired or, if an appeal was taken, the underlying legal proceeding has been completed on appellate review. Silvestrone v. Edell, 721 So.2d 1173, 1175 (Fla. 1998); R.S.B. Ventures Inc, v. Berlowitz, 211 So.3d 259, 263 (Fla. 4th DCA 2017). In Peat, Marwick, Mitchell & Co. v. Lane, 565 So.2d 1323 (Fla. 1990), the Florida Page 14[16Supreme Court affirmed the Third District finding that a cause of action for professional malpractice did not arise until "the existence of redressable harm has been established." The provisions of Fla. R. Civ. P. 1.530 that control the time in which a motion for rehearing must be filed do not apply to a motion to reconsider an interlocutory order. Because the trial court retains inherent authority to reconsider any of its nonfinal rulings prior to entry of the final judgment, a motion for reconsideration may be filed at any time before the entry of final judgment. A trial court may sua sponte reconsider and amend or vacate its interlocutory orders prior to final judgment. See Silvestrone at 1175. Fla. R. Civ. P. 1.540(b) additionally provides a path of relief up to 1 year after the court’s judgment, decree, order, or proceeding was entered or taken, permitting a court “on motion and upon such terms as are just” to vacate an order due to mistake, inadvertence, excusable neglect, newly discovered evidence, misconduct, or misrepresentation. Rule 1.540(b) does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order, or proceeding. The Order(s) Dismissing the Unserved Defendants Pursuant to Rule 1.070(j) were entered im the by Judge Curley on 09 8 in the Biuestone case and by Judge Nutt on iZ Cordes case. Said Orders were not an entry of final judgment, and neither Order stated that the dismissals were entered with prejudice. Rule 1.540(b) allowed Ms. Reyes until to 09/25/2019 to seek relief from Judge Curley’s dismissal order, and until 12/14/2019 to seek relief from Judge Nutt’s dismissal order. Instead, Plaintiff Yenis Reyes wrongfully pursued this subject malpractice action on June 25, 2019, prior to when redressable harm could be established. Plaintiff therefore did not have standing to file this legal malpractice action against the Defendants on that date, and Page 15[16WHEREFORE Defendants Personal Injury & Accident Law Center, P.A., Brandon Labiner, Esq., Paul Steven Labiner, Esq., and Paul S. Labiner, P.A. respectfully requests that this Honorable Court grant this Motion for Final Summary Judgment, and for such other relief as the Court deems just and proper. CERTIFICATE OF SERVICE ICERTIFY that a true and correct copy of the foregoing has been furnished through the Florida E-Filing Portal to Matthew D. Levy, Esq., 15300 Jog Road, Suite 103, Delray Beach, FL 33446, E-Mail: pleadings@metnickandlevy.com on this 24'" day of August, 2020. Personal Injury & Accident Law Center, P.A. !s/_ Brandon S. Labiner BRANDON S. LABINER, ESQUIRE FL Bar No: 123868 5499 N. Federal Highway, Suite K Boca Raton, FL 33487 Phone: (561) 372-3800 Fax: (561) 300-3448 Pleadings@PIALawCenter.com Page 16[16