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Filing # 96270666 E-Filed 09/25/2019 12:52:42 PM
1932201/4
IN THE CIRCUIT COURT OF THE 19TH JUDICIAL
CIRCUIT IN AND FOR INDIAN RIVER COUNTY
CASE NO. 312019CA000232
LEAH M. HUBBARD,
Plaintiff,
Vv.
E. CLAYTON YATES, P.A.,
Defendant.
/
DEFENDANT’S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFE’S
MOTION FOR CONTINUANCE
Defendant, E. CLAYTON YATES P.A., pursuant to Rule 1.510 of the Florida Rules
of Civil Procedure, responds to the Plaintiff's Motion for Continuance as to Defendant’s
Motion for Final Summary Judgment set for hearing on October 10, 2019 as follows:
MEMORANDUM OF LAW
As background, this case involves allegations of legal malpractice by an attorney
who withdrew from representation of Plaintiff three months before she pleaded nolo
contendere to two felony charges on April 2, 2018.’ Due to those pleas, Plaintiff was
sentenced to 179 days in jail, community control, and probation.
On March 9, 2019, the Plaintiff filed this action without getting post-conviction or
appellate relief under Rule 3.850, Florida Rules of Criminal Procedure which is a pre-
condition of filing suit for legal malpractice against a criminal defense attorney. Steele v.
‘ For reasons unknown to this Defendant, the Plaintiff decided not to sue the attorney who
represented her when she pleaded nolo contendere and was sentenced to 179 days in jail,
probation, and community control.CASE NO, 312019CA000232
Kehoe, 747 So. 2d 931, 933 (Fla.1999). The Second District's holding Cira y. Dillinger,
903 So. 2d 367, 369-371 (Fla. 2d DCA 2005) is on point. In Cira, a criminal defendant
was granted post-conviction relief but subsequently pleaded no contest to the charges.
The Second District held, in affirming summary judgment for the defense attorney, that
the plaintiff could not meet the exoneration requirement in his legal malpractice claim. Id.
Given the foregoing legal authority, the Court should enter Final Summary Judgment,
without any delay, as the Plaintiff has failed to meet the exoneration pre-condition since
the day she filed suit.
In Georganas-Kesselman v. Sheppard, 2002 WL 34519639, “2-3, No. 4:01cv98-
RH, *2-3 (N.D. Fla. Mar. 27, 2002) (applying Florida law), the district court entered final
summary judgment in favor of defendant criminal defense attorneys due to plaintiff's
failure to meet the exoneration requirement. The Court also entered final summary
judgment in that matter on the Plaintiff's other claims since they lacked admissible
evidence, and all arose out of, the alleged malpractice claim and allegations.
On July 31, 2019, Defendant filed its Motion for Final Summary Judgment.
Pursuant to Rule 1.510, Florida Rules of Civil Procedure, a hearing on that motion could
have been held as early as August 21, 2019. As shown in Exhibit “A”, Defendant sought
to have a hearing on its Motion for Final Summary Judgment on September 6, 2019, but
the Plaintiff objected due to her claim that she needed medical treatment.
Thereafter, the earliest date Defendant's counsel could get for its hearing was
October 10, 2019, which is more than two months after the Motion was filed and more
than 55 days after the Supplemental Memorandum was filed. Since then, the Plaintiff has
sought to delay the hearing. Recently, the Plaintiff filed a Motion to Strike the Defendant'sCASE NO, 312019CA000232
Hearing on its Motion for Summary Judgment. That motion was denied last week,
Notwithstanding the Plaintiff's medical consideration, the Plaintiff's claims have been
barred as a matter of law since she filed this action six months ago. The Plaintiff should
not be allowed further delay for the hearing on the Motion for Final Summary Judgment
since her claims have been barred as a matter of law since the day she filed suit.
Accordingly, the Defendant respectfully requests that the Court deny Plaintiffs
Motion for Continuance.
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a copy hereof has been furnished by service through the
eportal to Leah M. Hubbard, 2046 79th Avenue, Vero Beach, FL 32966, Pro Se, Leah
Hubbard, leahhubbard0706@gmail.com, on this _25th_day of ___ September _, 2019.
CONROY SIMBERG
Attorney for Defendant, E. Clayton Yates, P.A.
1801 Centrepark Drive East, Suite 200
West Palm Beach, FL 33401
Telephone: (561) 697-8088
Facsimile: (561) 697-8664
Primary Email: eservicewpb@conroysimberg.com
Secondary Email: jrubin@conroysimberg.com
By: _/s/ Peffrey K. Rubin
Jeffrey K. Rubin, Esquire
Florida Bar No. 42084DPW-Doreen Whitehall
From: DPW-Doreen Whitehall
Sent: Thursday, August 29, 2019 3:52 PM
To: ‘Leah Hubbard’
Ce: JKR-Jeffrey K, Rubin
Subject: RE: Hubbard v. £. Clayton Yates/Our File 1932201
Good Afternoon:
We will be setting Defendant’s Motion for Summary Judgment on Oct. 10" @ 12:00 noon, Please
advise if this date works for you.
DOREEN WHITEHALL
LEGAL ASSISTANT TO.
KYLE JOHNSON, ESQ.
HOPE N. BAROS, ESQ.
(861) 697-8088
(581) 478-8033 (Direct)
(661) 697-8664 (Fax)
1801 Centreoark Drive East
Suite 200
West Palm Beach, FL 33401
HOLLYWOOD WEST PALMBEACH ORLANDO FORT MYERS MIAMI PENSACOLA
TALLAHASSEE TAMPA JACKSONVILLE NAPLES THOMASVILLE, GA
PRIVILEGE AND CONFIDENTIALITY NOTICE + his e-mail is covered by the Blectronie Counnunications Privacy Act, 18 U.S.C . 2510-2522 and may be legally privileged pursuant
te Florida Statuie 90.502. The contents oF this e-mail messaye and any attachments are intended solely for the party or parties addressed and named in this message, This communivation and
all attachments, if any, are intended to be and to remain conti and it may be subject lo the applicable attorney - client and or work produet privileges. 1f you are uot the intended recipient
of this message, or if this message has been addressed to you in ertor, please immediately alert the sender by reply e-mail, delete this message and its alfaclsments and, if the recipient is an
aiomney or legal assistant, please immediately comply with Florida Rule of Civil Procedure 1.285(b), Do not disclose fhe contents o¢ take eny action in reliance upon the information contained
jn this communication or any allachments, Although this E-nsail and any altachuwents are believed to be free of any virus or other defect that might affect any computer system into whieh itis
received and opened, itis the responsibility of the recipient to ensure that itis virus five and no responsbbility is accepted by Conroy Simberg for damage arising in any way from its use
From: Leah Hubbard [mailto:leahhubbard0706@gmail.com]
Sent: Tuesday, August 06, 2019 3:25 PM
To: DPW-Doreen Whitehall
Subject: Re: Hubbard v. E. Clayton Yates/Our File 1932201
[External Email]
Hi.
Thave medical appointments coming up. Then a follow up on September 2nd. I'll file a Notice of unavailability
so the Court is aware that I can't be available on that date or later if I need another ultrasound of my left
kidney. Probably middle to late September.Thank you!
On Tue, Aug 6, 2019, 2:54 PM DPW-Doreen Whitehall wrote:
Good Afternoon:
We will be setting Defendant’s Motion for Summary Judgment on Sept. 6" for a 15 min
special set hearing. Kindly advise if you are available. Thank you.
DOREEN WHITEHALL
LEGAL ASSISTANT TO
KYLE JOHNSON, ESQ.
HOPE N. BAROS, ESQ.
(561) 697-8083
(561) 478-6033 (Direct)
(561) 697-8664 (Fax}
1801 Centrepark Drive East
Suite 200
West Paim Beach, FL 33401
HOLLYWOOD WEST PALM BEACH ORLANDO FORT MYERS MIAMI PENSACOLA
TALLAHASSEE TAMPA JACKSONVILLE NAPLES THOMASVILLE, GA
PRIVILEGE AND CONFIDENTIALITY NOTICE ; This e-mail is covered by the Electronic Communications Privacy Act, 18 U.S.C , 2510-2522 and may be legally privileged pursuant
to Florida Statute 90.502. The contents of this e-mail message and any attachments are intended solely for the party or parties addressed and named in this message. This communication and
all attachments, if any, are intended fo be and to remain confidential, and it may be subject to the applicable attorney - client and or work produst privileges. If you are tot the intended
Jient of this message, cr if this message has been addressed to you in error, please immediately alert the sender by reply e-mail, delete this message and its altachinents and, ifthe
recipient is an attorney or legal assistant, please immediately comply with Florida Rule of Civil Procedure 1.285(b). Do not disclose the contents or take any action in reliance upon the
information contained in this communication or any attechments, Although this E-mail and any altachments are believed to be free of any virus or other defect that might affect any computer
| system into which it is received and opened, itis the responsibility of the recipient to ensure that itis virus free and no responsibility is accepted by Conroy Simberg for damage arising in any
way from its use.
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Filing # 96270666 E-Filed 09/25/2019 12:52:42 PM 1932201/4 IN THE CIRCUIT COURT OF THE 19TH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY CASE NO. 312019CA000232 LEAH M. HUBBARD, Plaintiff, Vv. E. CLAYTON YATES, P.A., Defendant. / DEFENDANT’S MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFE’S MOTION FOR CONTINUANCE Defendant, E. CLAYTON YATES P.A., pursuant to Rule 1.510 of the Florida Rules of Civil Procedure, responds to the Plaintiff's Motion for Continuance as to Defendant’s Motion for Final Summary Judgment set for hearing on October 10, 2019 as follows: MEMORANDUM OF LAW As background, this case involves allegations of legal malpractice by an attorney who withdrew from representation of Plaintiff three months before she pleaded nolo contendere to two felony charges on April 2, 2018.’ Due to those pleas, Plaintiff was sentenced to 179 days in jail, community control, and probation. On March 9, 2019, the Plaintiff filed this action without getting post-conviction or appellate relief under Rule 3.850, Florida Rules of Criminal Procedure which is a pre- condition of filing suit for legal malpractice against a criminal defense attorney. Steele v. ‘ For reasons unknown to this Defendant, the Plaintiff decided not to sue the attorney who represented her when she pleaded nolo contendere and was sentenced to 179 days in jail, probation, and community control.CASE NO, 312019CA000232 Kehoe, 747 So. 2d 931, 933 (Fla.1999). The Second District's holding Cira y. Dillinger, 903 So. 2d 367, 369-371 (Fla. 2d DCA 2005) is on point. In Cira, a criminal defendant was granted post-conviction relief but subsequently pleaded no contest to the charges. The Second District held, in affirming summary judgment for the defense attorney, that the plaintiff could not meet the exoneration requirement in his legal malpractice claim. Id. Given the foregoing legal authority, the Court should enter Final Summary Judgment, without any delay, as the Plaintiff has failed to meet the exoneration pre-condition since the day she filed suit. In Georganas-Kesselman v. Sheppard, 2002 WL 34519639, “2-3, No. 4:01cv98- RH, *2-3 (N.D. Fla. Mar. 27, 2002) (applying Florida law), the district court entered final summary judgment in favor of defendant criminal defense attorneys due to plaintiff's failure to meet the exoneration requirement. The Court also entered final summary judgment in that matter on the Plaintiff's other claims since they lacked admissible evidence, and all arose out of, the alleged malpractice claim and allegations. On July 31, 2019, Defendant filed its Motion for Final Summary Judgment. Pursuant to Rule 1.510, Florida Rules of Civil Procedure, a hearing on that motion could have been held as early as August 21, 2019. As shown in Exhibit “A”, Defendant sought to have a hearing on its Motion for Final Summary Judgment on September 6, 2019, but the Plaintiff objected due to her claim that she needed medical treatment. Thereafter, the earliest date Defendant's counsel could get for its hearing was October 10, 2019, which is more than two months after the Motion was filed and more than 55 days after the Supplemental Memorandum was filed. Since then, the Plaintiff has sought to delay the hearing. Recently, the Plaintiff filed a Motion to Strike the Defendant'sCASE NO, 312019CA000232 Hearing on its Motion for Summary Judgment. That motion was denied last week, Notwithstanding the Plaintiff's medical consideration, the Plaintiff's claims have been barred as a matter of law since she filed this action six months ago. The Plaintiff should not be allowed further delay for the hearing on the Motion for Final Summary Judgment since her claims have been barred as a matter of law since the day she filed suit. Accordingly, the Defendant respectfully requests that the Court deny Plaintiffs Motion for Continuance. CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy hereof has been furnished by service through the eportal to Leah M. Hubbard, 2046 79th Avenue, Vero Beach, FL 32966, Pro Se, Leah Hubbard, leahhubbard0706@gmail.com, on this _25th_day of ___ September _, 2019. CONROY SIMBERG Attorney for Defendant, E. Clayton Yates, P.A. 1801 Centrepark Drive East, Suite 200 West Palm Beach, FL 33401 Telephone: (561) 697-8088 Facsimile: (561) 697-8664 Primary Email: eservicewpb@conroysimberg.com Secondary Email: jrubin@conroysimberg.com By: _/s/ Peffrey K. Rubin Jeffrey K. Rubin, Esquire Florida Bar No. 42084DPW-Doreen Whitehall From: DPW-Doreen Whitehall Sent: Thursday, August 29, 2019 3:52 PM To: ‘Leah Hubbard’ Ce: JKR-Jeffrey K, Rubin Subject: RE: Hubbard v. £. Clayton Yates/Our File 1932201 Good Afternoon: We will be setting Defendant’s Motion for Summary Judgment on Oct. 10" @ 12:00 noon, Please advise if this date works for you. DOREEN WHITEHALL LEGAL ASSISTANT TO. KYLE JOHNSON, ESQ. HOPE N. BAROS, ESQ. (861) 697-8088 (581) 478-8033 (Direct) (661) 697-8664 (Fax) 1801 Centreoark Drive East Suite 200 West Palm Beach, FL 33401 HOLLYWOOD WEST PALMBEACH ORLANDO FORT MYERS MIAMI PENSACOLA TALLAHASSEE TAMPA JACKSONVILLE NAPLES THOMASVILLE, GA PRIVILEGE AND CONFIDENTIALITY NOTICE + his e-mail is covered by the Blectronie Counnunications Privacy Act, 18 U.S.C . 2510-2522 and may be legally privileged pursuant te Florida Statuie 90.502. The contents oF this e-mail messaye and any attachments are intended solely for the party or parties addressed and named in this message, This communivation and all attachments, if any, are intended to be and to remain conti and it may be subject lo the applicable attorney - client and or work produet privileges. 1f you are uot the intended recipient of this message, or if this message has been addressed to you in ertor, please immediately alert the sender by reply e-mail, delete this message and its alfaclsments and, if the recipient is an aiomney or legal assistant, please immediately comply with Florida Rule of Civil Procedure 1.285(b), Do not disclose fhe contents o¢ take eny action in reliance upon the information contained jn this communication or any allachments, Although this E-nsail and any altachuwents are believed to be free of any virus or other defect that might affect any computer system into whieh itis received and opened, itis the responsibility of the recipient to ensure that itis virus five and no responsbbility is accepted by Conroy Simberg for damage arising in any way from its use From: Leah Hubbard [mailto:leahhubbard0706@gmail.com] Sent: Tuesday, August 06, 2019 3:25 PM To: DPW-Doreen Whitehall Subject: Re: Hubbard v. E. Clayton Yates/Our File 1932201 [External Email] Hi. Thave medical appointments coming up. Then a follow up on September 2nd. I'll file a Notice of unavailability so the Court is aware that I can't be available on that date or later if I need another ultrasound of my left kidney. Probably middle to late September.Thank you! On Tue, Aug 6, 2019, 2:54 PM DPW-Doreen Whitehall wrote: Good Afternoon: We will be setting Defendant’s Motion for Summary Judgment on Sept. 6" for a 15 min special set hearing. Kindly advise if you are available. Thank you. DOREEN WHITEHALL LEGAL ASSISTANT TO KYLE JOHNSON, ESQ. HOPE N. BAROS, ESQ. (561) 697-8083 (561) 478-6033 (Direct) (561) 697-8664 (Fax} 1801 Centrepark Drive East Suite 200 West Paim Beach, FL 33401 HOLLYWOOD WEST PALM BEACH ORLANDO FORT MYERS MIAMI PENSACOLA TALLAHASSEE TAMPA JACKSONVILLE NAPLES THOMASVILLE, GA PRIVILEGE AND CONFIDENTIALITY NOTICE ; This e-mail is covered by the Electronic Communications Privacy Act, 18 U.S.C , 2510-2522 and may be legally privileged pursuant to Florida Statute 90.502. The contents of this e-mail message and any attachments are intended solely for the party or parties addressed and named in this message. This communication and all attachments, if any, are intended fo be and to remain confidential, and it may be subject to the applicable attorney - client and or work produst privileges. If you are tot the intended Jient of this message, cr if this message has been addressed to you in error, please immediately alert the sender by reply e-mail, delete this message and its altachinents and, ifthe recipient is an attorney or legal assistant, please immediately comply with Florida Rule of Civil Procedure 1.285(b). Do not disclose the contents or take any action in reliance upon the information contained in this communication or any attechments, Although this E-mail and any altachments are believed to be free of any virus or other defect that might affect any computer | system into which it is received and opened, itis the responsibility of the recipient to ensure that itis virus free and no responsibility is accepted by Conroy Simberg for damage arising in any way from its use.