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Filing # 114741513 E-Filed 10/09/2020 02:48:33 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
DIANA K. WINKLER and ) Case No.: 48-2018-CA-006581
MICHAEL J. WINKLER, )
Plaintiffs, )
v. )
)
CHRISTOPHER P. HANCOCK, et al., )
Defendants. )
)
PLAINTIFFS’ MOTION TO COMPEL DEFENDANTS JENNIFER ENGLERT AND
THE ORLANDO LAW GROUP, PL TO RESPOND TO DISCOVERY AND
MOTION TO DEEM ADMISSIONS ADMITTED
Pursuant to Rules 1.370 and 1.380, Fla. R. Civ. P.,
Plaintiffs’ DIANA K. WINKLER and MICHAEL J. WINKLER, by and through
the undersigned counsel, respectfully request that this Court
order Defendants JENNIFER ENGLERT and THE ORLANDO LAW GROUP, PL
(“Englert Defendants”) respond in full to Plaintiffs’ First Set of
Interrogatories, and First Request for Production of Documents and
to further deem Plaintiffs’ First Request for Admissions admitted.
In support, Plaintiffs state:
Introduction
A defendant in this case has filed an answer and affirmative
defenses to Plaintiffs’ Second Amended Complaint (i.e., Defendant
Christopher P. Hancock, now disbarred by the Florid Bar). Two
other defendants have already produced discovery in response to
requests made by Plaintiff (i.e., Defendant Michael E. Morris and
Defendant Andrea A. McCreary). None of these defendants sought to
avoid discovery. In fact, Defendant Michael E. Morris sought to
Winkler, et al., v. Hancock, et al.; Case No.: 48-2018-CA-006581
Motion to Compel Englert Defendants to Respond and Motion to Have Admissions Deemed Admitted; Page 2 of 6
strike Plaintiffs’ Second Amended Complaint as a sham pleading, by
way of a verified motion, and Plaintiffs filed a verified response.
An evidentiary hearing was then held on August 26, 2020. In
denying Defendant Michael E Morris’ verified motion to strike
Plaintiffs’ Second Amended Complaint filed on December 2, 2019
(“SAC”), the Court duly noted how Plaintiffs had not tried to sue
Defendant Morris for direct negligence, but rather, on the basis
of some sort of derivative liability based on aiding and abetting
and statutory theories. Order, at 2 (“…the second amended
complaint is not a sham pleading simply because defendant disagrees
with the allegations made in it, the characterizations of the facts
alleged, or the legal conclusions to be drawn from those facts.”).
The Court further ordered that Defendant Morris’ motion to dismiss
be set for a hearing.
Discovery Efforts with Englert Defendants
1. On December 2, 2019, Plaintiffs filed their Second
Amended Complaint (“SAC”) against various parties, and in
particular, claims for legal malpractice, breach of fiduciary
duty, and fraudulent misrepresentation, as against certain Hyatt
Legal Plan network attorneys.
2. In the SAC, the claims are for legal malpractice
committed by Hyatt Plan network attorney Englert, vicarious
liability with respect thereto on the part of TOLG, as a
Winkler, et al., v. Hancock, et al.; Case No.: 48-2018-CA-006581
Motion to Compel Englert Defendants to Respond and Motion to Have Admissions Deemed Admitted; Page 3 of 6
Participating Law Firm in the Hyatt Plan network, and breach of
fiduciary duty.
3. Rather than timely respond to the SAC, and file an answer
(with affirmative defenses), like the disbarred Defendant
Christopher P. Hancock, or file a motion to strike the SAC as a
sham pleading, like his partner, Defendant Michael E. Morris, much
less file a motion to dismiss, like Defendant Andrea A. McCreary,
the Englert Defendants sought extension.
4. In fact, it was not until June 12, 2020 when the Englert
Defendants filed their Motion to Dismiss Second Amended Complaint,
Motion to Strike, and Memorandum of Law (“Englert’s MTD”). The
Englert Defendants assert various grounds.
5. On July 3, 2020, Plaintiffs served on the Englert
Defendants their First Request for Admissions, First Set of
Interrogatories, and First Request for Production of Documents.
6. Rather than adhere to the Florida Rules of Civil
Procedure specific to the requirement that they respond to a
request for admissions within thirty (30) days, and otherwise
address the Plaintiffs’ discovery as had the other Defendant
attorneys, Morris, and McCreary, on August 3, 2020, the Englert
Defendants filed a Motion for Extension of Time to File and Serve
their Responses to Plaintiffs’ First Request for Admissions, First
Set of Interrogatories, and First Request for Production of
Documents (“Englert Refusal”).
Winkler, et al., v. Hancock, et al.; Case No.: 48-2018-CA-006581
Motion to Compel Englert Defendants to Respond and Motion to Have Admissions Deemed Admitted; Page 4 of 6
7. This Englert Refusal is procedurally improper.
8. This Englert Refusal flies in the face of Rule 1.370(a),
which states that a matter is deemed admitted unless the party to
whom the request is directed serves upon the party requesting the
admission a written answer or objection addressed to the matter
within thirty days after service of the request or such shorter or
longer time as the court may allow.
9. In further indication of the improper use of any such
motion, the Englert Defendants have made no effort to call up their
motion for extension.
10. Because the propensity of the Englert Defendants to seek
extension, and also, refuse to respond in any way to discovery,
coupled with no effort to obtain the express permission from the
Court for an extension of time (other than merely file a motion
for extension on the 30th day), Plaintiffs respectfully suggest
that this Court should deem the request for admissions admitted,
especially when there has been no genuine effort on the part of
the Englert Defendants to comply with the rules under Rule
1.370(a). See e.g., Palm Constr. Co. v. Dep’t of Fin. Servs., 152
So. 3d 948, 949 (Fla. 1st DCA 2014).
11. In addition, Plaintiffs request that the Englert
Defendants be compelled to do as the other Defendants Morris and
McCreary have done, and respond to Plaintiffs’ Request for
Production of Documents and First Set of Interrogatories.
Winkler, et al., v. Hancock, et al.; Case No.: 48-2018-CA-006581
Motion to Compel Englert Defendants to Respond and Motion to Have Admissions Deemed Admitted; Page 5 of 6
WHEREFORE, Plaintiffs’ respectfully request that this Court
deem the requests for admissions served on the Englert Defendants
admitted, and otherwise compel the Englert Defendants to respond
within twenty (20) days of this Court’s order, as to Plaintiffs’
First Request for Production of Documents and First Set of
Interrogatories, and for such other relief as this Court deems
appropriate, including, if it felt it was appropriate, the award
of attorneys’ fees and costs as a sanction under these
circumstances.
CERTIFICATE OF SERVICE
I, HEREBY CERTIFY that this document was e-filed today through
the Florida Courts E-Filing Portal, which will serve the same on
all counsel of record. I also hereby certify that because there
are parties before this proceeding who are appearing pro se, and/or
without representation, a copy hereof is also being furnished
directly by electronic mail to the following parties and/or
attorney of record:
Sean M. McDonough, Esq., at sean.mcdonough@wilsonelser.com, A.
Donald Scott, Jr., Esq., at a.donald.scottjr@wilsonelser.com,
Wilson Elser Moskowitz Edelman & Dicker LLP, attorneys for
Defendants Jennifer Englert and The Orlando Law Group, PL;
Defendant Christopher P. Hancock at chancock@luxuslegal.com,
individually, and for Defendants Hancock Law Group, P.A. (f/k/a
Law Offices of Michael E. Morris, P.A., f/k/a Morris & Hancock,
Winkler, et al., v. Hancock, et al.; Case No.: 48-2018-CA-006581
Motion to Compel Englert Defendants to Respond and Motion to Have Admissions Deemed Admitted; Page 6 of 6
P.A., and f/k/a McCreary & Hancock, P.A.), Luxus Legal, LLC, and
Hancock & Associates, P.A. (f/k/a Law Offices of Christopher P.
Hancock, P.A.);
Damon I. Weiss, Esq., Weiss, Gruner, Barclay & Bennett, listed as
attorneys for Andrea McCreary, Esquire, at (INSERT E-MAIL FOR MR.
WEISS), even though she has indicated to Plaintiffs’ counsel that
she is representing herself and appearing in her own defense, and
filing using amccreary@wgworl.com); and Defendant Andrea Aurora
McCreary, at amccreary@wgworl.com;
Jeffrey M. Laundau, Esq., Shutts & Bowen, LLP, attorneys for
Defendant Hyatt Legal Plans of Florida, Inc., at
jlandau@shutts.com;
and
John Zielinski, Esq., Nejame Law, at john@nejamelaw.com, attorneys
for Defendant Michael E. Morris, individually.
CPLS, P.A.
Attorneys|Consultants|Mediators
201 E. Pine Street, Suite 445
Orlando, Florida 32801
407-647-7887/407-647-5396 (Fax)
Attorney for Plaintiffs
CPLS File No.: 3838-1
Dated: October 9, 2020 /s/ T. Scott Tufts
T. Scott Tufts, Esq.
Florida Bar No.: 0168841
STufts@cplspa.com
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Filing # 114741513 E-Filed 10/09/2020 02:48:33 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA DIANA K. WINKLER and ) Case No.: 48-2018-CA-006581 MICHAEL J. WINKLER, ) Plaintiffs, ) v. ) ) CHRISTOPHER P. HANCOCK, et al., ) Defendants. ) ) PLAINTIFFS’ MOTION TO COMPEL DEFENDANTS JENNIFER ENGLERT AND THE ORLANDO LAW GROUP, PL TO RESPOND TO DISCOVERY AND MOTION TO DEEM ADMISSIONS ADMITTED Pursuant to Rules 1.370 and 1.380, Fla. R. Civ. P., Plaintiffs’ DIANA K. WINKLER and MICHAEL J. WINKLER, by and through the undersigned counsel, respectfully request that this Court order Defendants JENNIFER ENGLERT and THE ORLANDO LAW GROUP, PL (“Englert Defendants”) respond in full to Plaintiffs’ First Set of Interrogatories, and First Request for Production of Documents and to further deem Plaintiffs’ First Request for Admissions admitted. In support, Plaintiffs state: Introduction A defendant in this case has filed an answer and affirmative defenses to Plaintiffs’ Second Amended Complaint (i.e., Defendant Christopher P. Hancock, now disbarred by the Florid Bar). Two other defendants have already produced discovery in response to requests made by Plaintiff (i.e., Defendant Michael E. Morris and Defendant Andrea A. McCreary). None of these defendants sought to avoid discovery. In fact, Defendant Michael E. Morris sought to Winkler, et al., v. Hancock, et al.; Case No.: 48-2018-CA-006581 Motion to Compel Englert Defendants to Respond and Motion to Have Admissions Deemed Admitted; Page 2 of 6 strike Plaintiffs’ Second Amended Complaint as a sham pleading, by way of a verified motion, and Plaintiffs filed a verified response. An evidentiary hearing was then held on August 26, 2020. In denying Defendant Michael E Morris’ verified motion to strike Plaintiffs’ Second Amended Complaint filed on December 2, 2019 (“SAC”), the Court duly noted how Plaintiffs had not tried to sue Defendant Morris for direct negligence, but rather, on the basis of some sort of derivative liability based on aiding and abetting and statutory theories. Order, at 2 (“…the second amended complaint is not a sham pleading simply because defendant disagrees with the allegations made in it, the characterizations of the facts alleged, or the legal conclusions to be drawn from those facts.”). The Court further ordered that Defendant Morris’ motion to dismiss be set for a hearing. Discovery Efforts with Englert Defendants 1. On December 2, 2019, Plaintiffs filed their Second Amended Complaint (“SAC”) against various parties, and in particular, claims for legal malpractice, breach of fiduciary duty, and fraudulent misrepresentation, as against certain Hyatt Legal Plan network attorneys. 2. In the SAC, the claims are for legal malpractice committed by Hyatt Plan network attorney Englert, vicarious liability with respect thereto on the part of TOLG, as a Winkler, et al., v. Hancock, et al.; Case No.: 48-2018-CA-006581 Motion to Compel Englert Defendants to Respond and Motion to Have Admissions Deemed Admitted; Page 3 of 6 Participating Law Firm in the Hyatt Plan network, and breach of fiduciary duty. 3. Rather than timely respond to the SAC, and file an answer (with affirmative defenses), like the disbarred Defendant Christopher P. Hancock, or file a motion to strike the SAC as a sham pleading, like his partner, Defendant Michael E. Morris, much less file a motion to dismiss, like Defendant Andrea A. McCreary, the Englert Defendants sought extension. 4. In fact, it was not until June 12, 2020 when the Englert Defendants filed their Motion to Dismiss Second Amended Complaint, Motion to Strike, and Memorandum of Law (“Englert’s MTD”). The Englert Defendants assert various grounds. 5. On July 3, 2020, Plaintiffs served on the Englert Defendants their First Request for Admissions, First Set of Interrogatories, and First Request for Production of Documents. 6. Rather than adhere to the Florida Rules of Civil Procedure specific to the requirement that they respond to a request for admissions within thirty (30) days, and otherwise address the Plaintiffs’ discovery as had the other Defendant attorneys, Morris, and McCreary, on August 3, 2020, the Englert Defendants filed a Motion for Extension of Time to File and Serve their Responses to Plaintiffs’ First Request for Admissions, First Set of Interrogatories, and First Request for Production of Documents (“Englert Refusal”). Winkler, et al., v. Hancock, et al.; Case No.: 48-2018-CA-006581 Motion to Compel Englert Defendants to Respond and Motion to Have Admissions Deemed Admitted; Page 4 of 6 7. This Englert Refusal is procedurally improper. 8. This Englert Refusal flies in the face of Rule 1.370(a), which states that a matter is deemed admitted unless the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter within thirty days after service of the request or such shorter or longer time as the court may allow. 9. In further indication of the improper use of any such motion, the Englert Defendants have made no effort to call up their motion for extension. 10. Because the propensity of the Englert Defendants to seek extension, and also, refuse to respond in any way to discovery, coupled with no effort to obtain the express permission from the Court for an extension of time (other than merely file a motion for extension on the 30th day), Plaintiffs respectfully suggest that this Court should deem the request for admissions admitted, especially when there has been no genuine effort on the part of the Englert Defendants to comply with the rules under Rule 1.370(a). See e.g., Palm Constr. Co. v. Dep’t of Fin. Servs., 152 So. 3d 948, 949 (Fla. 1st DCA 2014). 11. In addition, Plaintiffs request that the Englert Defendants be compelled to do as the other Defendants Morris and McCreary have done, and respond to Plaintiffs’ Request for Production of Documents and First Set of Interrogatories. Winkler, et al., v. Hancock, et al.; Case No.: 48-2018-CA-006581 Motion to Compel Englert Defendants to Respond and Motion to Have Admissions Deemed Admitted; Page 5 of 6 WHEREFORE, Plaintiffs’ respectfully request that this Court deem the requests for admissions served on the Englert Defendants admitted, and otherwise compel the Englert Defendants to respond within twenty (20) days of this Court’s order, as to Plaintiffs’ First Request for Production of Documents and First Set of Interrogatories, and for such other relief as this Court deems appropriate, including, if it felt it was appropriate, the award of attorneys’ fees and costs as a sanction under these circumstances. CERTIFICATE OF SERVICE I, HEREBY CERTIFY that this document was e-filed today through the Florida Courts E-Filing Portal, which will serve the same on all counsel of record. I also hereby certify that because there are parties before this proceeding who are appearing pro se, and/or without representation, a copy hereof is also being furnished directly by electronic mail to the following parties and/or attorney of record: Sean M. McDonough, Esq., at sean.mcdonough@wilsonelser.com, A. Donald Scott, Jr., Esq., at a.donald.scottjr@wilsonelser.com, Wilson Elser Moskowitz Edelman & Dicker LLP, attorneys for Defendants Jennifer Englert and The Orlando Law Group, PL; Defendant Christopher P. Hancock at chancock@luxuslegal.com, individually, and for Defendants Hancock Law Group, P.A. (f/k/a Law Offices of Michael E. Morris, P.A., f/k/a Morris & Hancock, Winkler, et al., v. Hancock, et al.; Case No.: 48-2018-CA-006581 Motion to Compel Englert Defendants to Respond and Motion to Have Admissions Deemed Admitted; Page 6 of 6 P.A., and f/k/a McCreary & Hancock, P.A.), Luxus Legal, LLC, and Hancock & Associates, P.A. (f/k/a Law Offices of Christopher P. Hancock, P.A.); Damon I. Weiss, Esq., Weiss, Gruner, Barclay & Bennett, listed as attorneys for Andrea McCreary, Esquire, at (INSERT E-MAIL FOR MR. WEISS), even though she has indicated to Plaintiffs’ counsel that she is representing herself and appearing in her own defense, and filing using amccreary@wgworl.com); and Defendant Andrea Aurora McCreary, at amccreary@wgworl.com; Jeffrey M. Laundau, Esq., Shutts & Bowen, LLP, attorneys for Defendant Hyatt Legal Plans of Florida, Inc., at jlandau@shutts.com; and John Zielinski, Esq., Nejame Law, at john@nejamelaw.com, attorneys for Defendant Michael E. Morris, individually. CPLS, P.A. Attorneys|Consultants|Mediators 201 E. Pine Street, Suite 445 Orlando, Florida 32801 407-647-7887/407-647-5396 (Fax) Attorney for Plaintiffs CPLS File No.: 3838-1 Dated: October 9, 2020 /s/ T. Scott Tufts T. Scott Tufts, Esq. Florida Bar No.: 0168841 STufts@cplspa.com