Motion to Dismiss in WINKLER, DIANA Ket al. vs. HANCOCK, CHRISTOPHER Pet al.| Trellis.Law

On June 11, 2018 a Motion,Ex Parte was filed involving a dispute between Diana K Winkler, Michael J Winkler, and Andrea A Mccreary, Andrea A Mccreary A Aurora Mccreary Aka, Christopher P Hancock, Hancock And Associates P A, Hancock Law Group, P.A., Hancock Law Group, P.A. The Law Office Of Michael E. Morris, P.A. Fka, Hyatt Legal Plans Of Florida Inc, Jennifer Englert, Law Office Of Michael E Morris P A, Luxus Legal Llc, Michael E Morris, The Orlando Law Group, for 3 in the District Court of Orange County.

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Filing # 103657445 E-Filed 02/20/2020 04:34:17 PM

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
DOMESTIC RELATIONS
DIANA K. WINKLER & CASE NO.: 2018-CA-6581
MICHAEL J. WINKLER,
Plaintiffs,
and

CHRISTOPHER P. HANCOCK et al.,
Defendants.
/
MOTION TO DISMISS OR IN THE ALTERNATIVE
FOR A MORE DEFINITE STATEMENT
COMES NOW the Defendant, ANDREA AURORA MCCREARY (hereinafter
“McCreary”) , and hereby files this, her Motion to Dismiss or in the Alternative for a More
Definite Statement and states as follows:
History
1 The Plaintiffs have filed a Second Amended Complaint fourteen (14) count

Complaint.

2. Count VII is for Aiding and Abetting Breach of Fiduciary Duty is the first Count

addressed as being against McCreary.

3 Count XI is for Wrongful Act Liability under F.S. Section 621.07 and Florida Bar

Rule 4-5.1(c)(2), and mentions McCreary.

4. Count XII is for Liability Under F.F. Section 607.1407 (4), and mentions

McCreary.

5 No other Counts mentioned McCreary, and therefore they will not be addressed.

6 The instant cause of actions arises out of a legal engagement purportedly entered

into between the Plaintiffs and a legal service provider and multiple lawyers and law firms.

Specifically, the Plaintiffs allege they entered into an agreement for representation with

MORRIS AND HANCOCK (hereinafter “M&H”), I.k.a. MCCREARY AND HANCOCK, PA,

(hereinafter “MHPA”) where McCreary worked as an associate attorney. McCreary was not in
any way involved with the engagement or any contemplated or performed legal services

rendered to Plaintiff and, as an associate attorney, had no authority to act on behalf of MHPA or

make decisions about whether to make disbursements out of the firm trust account or receive

profits from said accounts.

7 At all time material hereto, McCreary worked as an associate attorney with the

law office of M&H and MHPA.

8. At all times material hereto, McCreary worked under the authority and direction

of CHRISTOPHER HANCOCK (hereinafter “Hancock”), who was the sole authority at M&H

and MHPA.

9 In the entire eighty-nine (89) page Complaint, the Plaintiffs never allege that

McCreary worked on the Plaintiffs case or entered into any attorney client privilege relationship.

10. The entire basis of the Plaintiff's case against McCreary is as follows:

a. McCreary was an alleged partner at MHPA;

b McCreary had a phone conversation with the Plaintiffs and told them after

becoming aware of their unreturned calls that she would take no action in early 2015;

Cc. McCreary knew of Hancock’s inability to practice law and failed to take

action upon being hired;

d McCreary knew of Hancock’s inability to practice law and failed to take

action upon being hired.

11. Nowhere within the four corners of the Second Amended Complaint do the

Plaintiffs allege that McCreary owed some duty to them as an individual to the Plaintiffs separate

and apart from her alleged role as a partner and her designations as “Officer” of MHPA. As a

matter of law, these factual allegations, alone, do not establish that McCreary owed any type of
duty, as an individual, to the Plaintiffs such that the Plaintiffs can pursuant its stated claims

against McCreary.!

12. As explained in detail below, even though Plaintiffs have amended its Complaints

multiple times and included a slew of new counts, it has still failed to state a valid cause of action

and detail against McCreary. Rather, Plaintiffs have merely inserted additional allegations in an

effort to manufacture a basis to purse this action against McCreary, an attorney with whom the

Plaintiffs had absolutely no relationship. Specifically, Plaintiff have added in allegations

regarding McCreary’s purported role in the firm in an attempt to expand McCreary’s duties and

obligations beyond those owed to her own clients and extend to individuals and entities with

whom she has absolutely no relationship, including the Plaintiff's. In fact, the Plaintiff's have

now added colorful language regarding an alleged conversation, the only alleged communication

with McCreary and the Plaintiffs, that go beyond the testimony/argument giving at the first

hearing.” However, the core facts set forth by the Plaintiffs remain unchanged and do not create a

legally cognizable cause of action against McCreary. Therefore, the claims asserted against

McCreary should be dismissed.

Standard of Review

Under Florida law, a complaint must contain “a short and plain statement of the ultimate facts

showing that the pleader is entitled to relief... .” Fla. R. Civ. P. 1.110(b). The complaint’s primary

' Plaintiffs also refer to the Rules Regulating the Florida Bar several times throughout the Second Amended
Complaint in support of its assertion that the Defendants had a duty to ensure the HANCOCK was competent to
practice law. However, Florida law is clear that the ethical duties imposed by the Florida Bar do not create a legal
duty on the part of lawyers, the violation of which would lead to civil liability. See R. Regulating Fla. Bar 4, pmble.;
Greenwald v. Eisinger, Brown, Lewis & Frankel, P.A., 118 So. 3d 867, 871-72 (Fla. 3d DCA 2013); Beach Higher
Power Corp. v. Rekant, 832 So. 2d 831, 833 n.2 (Fla. 3d DCA 2002) (noting that the Rules of Professional Conduct
clearly provide that they are not to be utilized to determine attorney liability); Smith v. Bateman Graham, P.A., 680
So. 2d 497, 498 (Fla. Ist DCA 1996); see also Lane v. Sarfati, 676 So. 2d 475, 476 (Fla. 3d DCA 1996) (“I stress
that the Rules of Professional Conduct are meant solely to provide ethical guidelines and for utilization in Florida
Bar disciplinary proceedings”) (Gersten, J., concurring); Elkind v. Bennett, 958 So. 2d 1088, 1091 (Fla. 4th DCA
2007) (recognizing that one must look to the substantive law to determine whether an attomey owes a legal duty to
a client).
Attached is the transcript of the initial proceeding to dismiss— see page 18 line 14-25 and pg 10 line 1-5.
purpose “is to advise the [c]ourt and the defendant of the nature of a cause of action asserted by the

plaintiff.” See Connolly v. Sebeco, Inc., 89 So. 2d 482, 484 (Fla. 1956) (emphasis removed). This

requires that a plaintiff “allege ultimate facts establishing each and every essential element of a

cause of action . . . .” See Sanderson v. Eckerd Corp., 780 So. 2d 930, 933 (Fla. 5th DCA 2001).

“[W]here the elements of a cause of action are not pled in the complaint, they may not be

inferred by the context of the allegations.” Jd. (finding a failure to state a valid cause of action

where essential elements to causes of action had not been pled). Florida’s pleading standards also

mandate that “[a]ll averments of a claim . . . be made in consecutively numbered paragraphs, the

contents of each of which shall be limited as far as practicable to a statement of a single set of

circumstances,” and that “[e]ach claim founded upon a separate transaction or occurrence . . . be

stated in a separate count . . . when a separation facilitates the clear presentation of the matter set

forth.” See Fla. R. Civ. P. 1.110(f).

A motion to dismiss a complaint requests that the trial court “determine whether the

complaint properly states a cause of action upon which relief can be granted and, if it does not, to

enter an order of dismissal.” Nero v. Cont’l Country Club R.O., Inc., 979 So. 2d 263, 267 (Fla.

5th DCA 2007) (citing Huet v. Mike Shad Ford, Inc., 915 So. 2d 723, 725 (Fla. Sth DCA 2005)).

Tf the complaint fails to state a valid “cause of action upon which relief can be granted,” the court

is required to enter an order of dismissal. See Fox v. Prof] Wrecker Operators of Fla., Inc., 801

So. 2d 175, 178 (Fla. Sth DCA 2001) (citations omitted) (explaining that “[t]he question for the

trial court to decide is simply whether, assuming all the allegations in the complaint to be true,

the plaintiff would be entitled to the relief requested”); see also Fla. R. Civ. P. 1.140(b)(6). “If a

pleading to which a responsive pleading is permitted is so vague or ambiguous that a party

cannot reasonably be required to frame a responsive pleading, that party may move for a more

definite statement before interposing a responsive pleading.” Fla. R. Civ. P. 1.140(e). Moreover,
“[a] party may move to strike or the court may strike redundant, immaterial, impertinent, or

scandalous matter from any pleading at any time.” Jd. at 1.140(f).

ERISA Preempts and Governs the Plaintiffs’ Claims Against McCreary

McCreary joins in the Hyatt Legal Motion to Dismiss filed January 2, 2020, as it relates

to ERISA and employee benefit plans and the Complaint and by reference McCreary adopts the

Hyatt Legal arguments set forth in said Motion to Dismiss as if fully set forth herein. To the

extent that the Counts against McCreary relate to the services and relationship created by the

employee benefits plan of Hyatt Legal, the matter should be dismissed as part of an ERISA-

controlled plan regardless of the name attached to it.

Count VII - Time Barred by Statute of Limitations - Fails to State a Cause of Action

Count VII purports to set forth a cause of action against McCreary for aiding and abetting

Hancock in his purported breaches of fiduciary duty to the Plaintiffs. Count VII is nothing more

than a redressed argument for legal malpractice that was previously dismissed by the Court.

Even if not already preempted by ERISA, the cause of action must be dismissed as it is time

barred and/or fails to state a cause of action.

The two-year limitation period under Florida Statutes § 95.11(4)(a) applies a professional

negligence claim. Here, the Plaintiffs’ claim for aiding and abetting breach of fiduciary is

tantamount to a professional malpractice claim. The Plaintiffs’ argument center around

McCreary’s hiring, McCreary’s telephone conversation, and McCreary’s alleged silence until she

left the firm. All of these instances are related to the employment of McCreary at MHPA and her

professional relationship to Hancock. As such, this is nothing more than a professional

malpractice claim and should be dismissed.

The elements of a claim for legal malpractice are (1) employment of the lawyer; (2) the

lawyer’s neglect of a reasonable duty; and (3) loss to the client proximately caused by the
lawyer’s negligence. See Bolves v. Hullinger, 629 So.2d 198, 200 (Fla. 5th DCA 1993). To be

liable for legal malpractice arising out of litigation, the attorney must first have a duty and then

the neglect of such duty be the proximate cause of the adverse outcome of the underlying action

which results in damage to the client. Silverstrone vs. Edell, 721 So.2d 1173 (Fla. 1998). A mere

causal connection is insufficient, Florida law requires that a Plaintiff make a factual showing that

a defendant’s actions foreseeably caused the specific harmed alleged. Williams v. Davis, 974 So.

2d 1052, 1056 (Fla. 2007); see also Bankers Tr. Realty, Inc. v. Kluger, 672 So. 2d 897, 898 (Fla.

3d DCA 1996) (holding that a plaintiff must allege facts “that support acausal connection

between the alleged acts .. . and the alleged damages defendant). Under the theory of vicarious

liability “The acts of an agent, performed within the scope of his real or apparent authority, are

binding upon his principal.” Dingle v. Dellinger, 134 So. 3d 484, 492 (Fla. 5th DCA 2014)

(citing Aema Ins. Co. v. Holmes, 59 Fla. 116, 52 So. 801, 802 (1910)). “The essential elements

necessary to establish an actual agency relationship are (1) acknowledgment by the principal that

the agent will act for him, (2) acceptance by the agent of the undertaking, and (3) control by the

principal over the agent's actions.” Roman v. Bogle, 113 So. 3d 1011, 1016 (Fla. Sth DCA 2013).

Here, the Plaintiffs’ fail to sufficiently plead the existence of an attorney/client relationship

between the Plaintiffs and McCreary. Furthermore, the Plaintiffs have alleged a separate count

for any liability based on Fla. Stat. § 621.07. Should Count VII be determined to be a pleading

for general negligence, it fails to plead the existence of a duty that was allegedly breach by

McCreary.

A cause of action accrues when the last element constituting the cause of action occurs.

Fla, Stat. § 95.031(1). The period of limitations for an action for professional malpractice

commences when the plaintiff either discovers the cause of action or should have discovered the
cause of action with the exercise of due diligence. Fla. Stat. § 95.11(4)(a). Here, the Plaintiffs

allege that “[u]pon her hiring to work at the M&H law firm...Defendant McCreary had

knowledge of the foregoing breach of fiduciary duty committed by Hancock against the

[Plaintiffs].” Looking at the allegations relating to the breach, the Plaintiffs’ acknowledge that

McCreary was hired in early 2015 and was already hired by the time of their hearing on May 28,

2015.3 The Plaintiffs’ allege that a conversation took place between themselves and McCreary in

“early to mid-2015” by which McCreary learned of Hancock’s actions. The Complaint was filed

on June 11, 2018. As such, the claims for aiding and abetting are time barred. To the extent the

Court find the Plaintiff's dates to be vague, McCreary requests the Court order the Plaintiffs’ to

Amend their Complaint to be more specific as to allow McCreary to defend herself and know the

counts against her.

Should the Plaintiffs’ argue that the four-year statute of limitations apply due to their

being a lack of privity, Count IV should be dismissed as again, being preempted by ERISA, as it

relates to a employee benefits plan. Furthermore, should the Plaintiffs’ argue that ERISA it not

be preempted by ERISA yet still no privity existed, the Plaintiffs themselves contradict said

argument by the third prong of the elements required and by arguing that this is not a

professional malpractice claim.

In Florida, a cause of action for aiding and abetting requires “(1) an underlying violation

on the part of the primary wrongdoer; (2) knowledge of the underlying violation by the alleged

aider and abett[o]r; and (3) the rendering of substantial assistance in committing the wrongdoing

by the alleged aider and abettor.” Asokan v. Am. Gen. Life Ins. Co., 302 F. Supp. 3d 1303, 1312

(M.D. Fla. 2017) (quoting Lawrence v. Bank of Am., N.A., 455 Fed.Appx. 904, 906 (11th Cir.

2012) (per curiam)).

3 See Second Amended Complaint pg 26 and 27 liens 115 — 117.
Here, the Plaintiffs have failed to adequately plead the elements of the cause of action.

Simply including appropriate buzzwords in their Second Amended Complaint, such as that

McCreary supposedly had “knowledge” of Hancock’s breaches merely by being employed, or

“substantially assisted” in those alleged breaches by Hancock, but without pleading any facts

supporting these legal conclusions is insufficient to maintain the cause of action.

In fact, the only instance in the entire 89-page complaint regarding actions by McCreary

was an alleged phone conversation between the Plaintiffs’ and McCreary. At the first

proceeding, the transcript alleges a conversation where McCreary informed the Plaintiffs of

Hancock’s message and he was very busy. In the Amended Complaint, there is no mention of

this conversation. In the Second Amended Complaint, the Plaintiffs in two separate areas state

that McCreary stated in response to the Plaintiff's informing her of missed calls “that she did not

have time to worry about such things” and later changed the response to “she would take no

action with regard to the same”. These inconsistencies demonstrate the vagueness and lack of

facts to support a legal conclusion. Furthermore, the Plaintiffs have failed to demonstrate how

McCreary had knowledge of Hancock’s breaches when the Plaintiffs themselves state that the

only thing McCreary had knowledge of was Hancock’s missed calls. The Plaintiffs fail to plead

any example of McCreary having knowledge regarding their case other than unreturned calls.

The Plaintiffs fail to plead that knowledge of missed calls substantially assisted the wrong doer.

Furthermore, the Plaintiffs only plead a blanket statement that McCreary had knowledge of

Hancock’s actions because she was employed there. Every other Defendant at some point had

interaction with the Plaintiffs and details are given as to their interactions and how the interaction

connected to the damage done by Hancock. The Plaintiffs’ only action alleged in this Count

against McCreary is her employment and knowledge of unreturned calls without any further
explanation of a nexus to her damages. Given the foregoing, even if not already preempted by

ERISA, the Winkler’s count against McCreary for aiding and abetting must be dismissed for

failure to state a cause of action.

Wrongful Act Liability Under Fl. Bar Rule 4-5.1 (c)(2) and violation of Fla. Stat. § 621.07

As noted by Mr. Morris, the Plaintiffs’ have failed to allege any direct violations under

Florida Bar Rule 4-5.1(c)(2) by McCreary, directly or indirectly. Nor have they plead any duty or

relationship created between themselves and McCreary. Furthermore, violations of the Florida

Bar Rules itself give rise to a cause of action against a lawyer as they are not designed to be a

basis for civil liability. As such, McCreary will move forward with the notion that the cause of

action is a wrongful act liability under Fla. Stat. § 621.07.

Fla. Stat. § 621.07 holds officers and employees personally liable and accountable for

negligent and wrongful acts or misconduct committed by any person under that person’s direct

supervision and control. However, it would still be based on a cause of action based on the

negligent and wrongful acts or misconduct. The Plaintiffs point to Legal Malpractice and Breach

of Fiduciary Duty. As mentioned above, the Legal Malpractice count and the Breach of

Fiduciary Duty Count are both two-year statute of limitations based on profession misconduct

and thus are governed and preempted by ERISA as it is connected to the employee benefit plan.

As mentioned above, any and all actions taken by Hancock prior to June 11, 2016 are barred by

the statute of limitations. Should the Plaintiffs’ argue the four years statute of limitations should

apply as there was no privity, the Complaint against is governed and preempted by ERISA.

Liability Under Fila. Stat. § 607.1407(4)

The Plaintiffs allege that Hancock’s firm was improperly dissolved and that under

information and belief, everyone who worked there as a partner and all other elements required
under Fla, Stat. § 607.1407. To say artfully, every element of the claim is plead without an

ounce of detailed facts beyond mere pleadings. At no point do the Plaintiff speak about notice

give to creditors, or of filings, or of any of the actual requirements for a business to dissolve.

Instead, the Plaintiffs make blanket allegations. The Plaintiffs should be required to point to at

least basic knowledges and allegations rather than blanket hope statements. Florida pleadings

requirement require at least a basic level of facts beyond a basic pleading of elements.

WHEREFORE, the Defendant, AURORA MCCREARY, respectfully prays this

Honorable Court grant her Motion to Dismiss and grant such other and further relief as the Court

may deem just, proper and appropriate.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to:
T. Scott Tufts (stufts@cplspa.com); John W. Zielinski, Esq. (john@nejamelaw.com),
Christopher Hancock (225 South Westmonte Drive, Altamonte Springs, FL, 32714); Luxus
Legal, LLC (225 South Westmonte Drive, Altamonte Springs, FL, 32714); Hancock &
Associates, P.A..(225 South Westmonte Drive, Altamonte Springs, FL, 32714); Hancock Law
Group, P.A. (225 South Westmonte Drive, Altamonte Springs, FL, 32714); Hyatt Legal Plans of
Florida, Inc, (jlandau@shutts.com and jmeagher@shutts.com); Sean McDonough, Esq.
(sean.mcdonough@wilsonelser.com) this 20" day of February, 2020.

/s/ Aurora McCreary, Esquire
AURORA MCCREARY, ESQUIRE
Florida Bar #: 110400
DAMON WEISS
Florida Bar # 148202
1059 Maitland Center Commons Blvd.
Maitland, FL 32751
Phone: (407) 843-3990
Attorney/Defendant
amccreary@wgworl.con

10
Filing # 84900975 E-Filed 02/13/2019 08:43:54 PM

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT OF FLORIDA
IN AND FOR ORANGE COUNTY

DIANA K. WINKLER &
MICHAEL J. WINKLER, Case No.: 48-2018-CA-006581
Plaintiffs,
vs.

CHRISTOPHER P. HANCOCK et all.
Defendants,
/

PLAINTIFFS’ NOTICE OF FILING TRANSCRIPT

Plaintiffs Diana & Michael Winkler give notice of filing the transcript of the hearing held

on January 7" 2019.

/s/ Diana K. Winkler
Diana K. Winkler - Pro Se

/s/ Michael J. Winkler
Michael J. Winkler - Pro Se

CERTIFICATE OF SERVICE

Thereby CERTIFY that on the 13 of February 2019 a copy of the foregoing has been
furnished to the following parties, either electronically by email through the Florida E-Portal.

Defendants:

Jeffrey M. Landau & John E. Meagher
Attomey for Hyatt Legal Plans of Florida, Inc.
Shutts & Bowen LLP
200 South Biscayne Blvd, Suite 4100
Miami, Florida 33131
jlandau@shutts.com
jmeagher@shutts.com

Sean M. Mcdonough
Attorney for Defendants Jennifer Engler & The Orlando Law Group
Wilson Elser Moskowitz Edelman & Dicker LLP
111 North Orange Avenue, Suite 1200
Orlando, Florida 32801
sean.mcdonough@wilsonelser.com

-1-
Aurora Mccreary
1059 Maitland Center Commons Blvd.
Maitland, FL 32751
amecreary@wgworl.com

Michael E. Morris
Law Office of Michael E. Morris
1060 Woodcock Road
Orlando, Florida 32803
memorrislaw@gmail.com

Christopher P. Hancock &
Hancock & Associates, P.A. & Luxus Legal, LLC
225 S. Westmonte Drive, Suite 1050
Altamonte Springs, FL 32714
lexuslegal@gmail.com

/s/ Diana K. Winkler
Diana K. Winkler, & Michael J. Winkler - Pro Se
10908 Dominico Street
Orlando, FL 32825
Email: DianaK Winkler@gmail.com
(407) 267-1397

2-
Diana K. Winkler and Michael J. Winkler vs Christopher P. Hancock, et al.
HONORABLE CHAD K. ALVARO on 01/07/2019

IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT, IN
AND FOR ORANGE COUNTY, FLORIDA

CASE NO.: 2018-CA-006581-0

DIANA K. WINKLER and
MICHAEL J. WINKLER,

Plaintiffs,

vs.

CHRISTOPHER P. HANCOCK;
LUXUS LEGAL, LLC; HANCOCK
& ASSOCIATES, P.A.;
ANDREA A. MCCREARY;
MICHAEL E. MORRIS; LAW OFFICE
10 OF MICHAEL E. MORRIS, P.A.;
HYATT LEGAL PLANS OF FLORIDA, INC.;
ii JENNIFER ENGLERT; and THE ORLANDO
LAW GROUP,
12
Defendants.
13

15 HEARING BEFORE THE
HONORABLE CHAD K. ALVARO
16

17 DATE TAKEN Monday, January 7, 2019

18 TIME: 3:05 p.m.

19 PLACE: Orange County Courthouse
425 N. Orange Avenue
20 Hearing Room 1100.01
Orlando, Florida 32801
21

22 REPORTED BY: Christine L. Price, RPR
and Notary Public
23

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Diana K. Winkler and Michael J. Winkler vs Christopher P. Hancock, et al.
HONORABLE CHAD K. ALVARO on 01/07/2019 Page 2

APPEARANCES:

Appearing on behalf of the Plaintiffs:

DIANA K. WINKLER, PRO SE
10908 Dominico Street
Orlando, Florida 32825
dianawinkler4731@gmail.com

Appearing on behalf of the Defendant,
Andrea A. McCreary:

A. AURORA McCREARY, ESQUIRE
Weiss, Grunor, Barclay & Barrett
1059 Maitland Center Commons Boulevard
Maitland, Florida 32751
amccreary@wgworl.com

10 Appearing on behalf of the Defendants,
Michael E. Morris and Law Office of Michael
11 E. Morris, P.A.:

12 MICHAEL E. MORRIS, ESQUIRE
Law Office of Michael E. Morris
13 1060 Woodcock Road
Orlando, Florida 32803
14 memorrislaw@gmail.com

15 Appearing on behalf of the Defendant,
Hyatt Legal Plans of Florida, Inc.:
16
JEFFREY M. LANDAU, ESQUIRE
17 Shutts & Bowen, LLP
200 S. Biscayne Boulevard
18 Suite 4100
Miami, Florida 33131
19 jlandau@shutts.com

20 Appearing on behalf of the Defendants,
Jennifer Englert and The Orlando Law Group:
21
SEAN M. MCDONOUGH, ESQUIRE
22 Wilson, Elser, Moskowitz,
Edelman & Dicker, LLP
23 111 N. Orange Avenue, Suite 1200
Orlando, Florida 32801
24 sean .mcdonough@wilsonelser.com

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Diana K. Winkler and Michael J. Winkler vs Christopher P. Hancock, et al.
HONORABLE CHAD K. ALVARO on 01/07/2019 Page 3

PROCEEDINGS

THE COURT: Okay. We are here on

Case No. 2018-CA-6581. Winkler and Winkler versus

Hancock. I'll go around the room and take

appearances starting with the Plaintiff, please.
MS. WINKLER: Diane Winkler.

MS. MCCREARY: Aurora McCreary.

MR. LANDAU: Jeffrey Landau of Shutts & Bowen

on behalf of Hyatt Legal.

10 MR. McDONOUGH: Sean McDonough on behalf of

11 Jennifer Englert and The Orlando Law Group.
12 MR. MORRIS: Michael Morris.

13 THE COURT: Okay. And my understanding is that
14 there's been a bankruptcy petition filed by
15 Mr. Morris; is that accurate?

16 MR. MORRIS: That is correct, Your Honor.

17 I filed a Chapter 13 and so there is a stay as to me

18 individually.

19 THE COURT: Okay. So any matter set with

20 respect to Mr. Morris will not go forward by virtue

21 of the bankruptcy stay and that specifically
22 includes Mr. Morris's Motion to Dismiss and Motion
23 to Quash.

24 So my understanding and my review of the docket
25 is that that leaves Ms. McCreary's Motion to

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Dismiss, the Englert/Orlando Law Group's Motion to

Dismiss, and Hyatt's Motion to Set Aside the Clerk's
Default.

Does that sound about right to everyone?

MS. McCREARY: Yes, Your Honor.

THE COURT: Okay. Who noticed the hearing

first?

MR McDONOUGH: Mr. Morris did actually.

THE COURT: Okay. Who noticed it second?

10 MR McDONOUGH: That would be me, Your Honor.

11 THE COURT: Are you ready to proceed, Counsel?

12 MR. McDONOUGH: Yes, I am, your Honor.

13 THE COURT: Okay. Go right ahead.

14 MR. McDONOUGH: So unfortunately for -- I mean,

15 Ms. Winkler and her husband have had some

16 unfortunate luck in her experience in her mind with

17 attorneys regarding a mortgage foreclosure action

18 that was eventually resolved well before any of the

19 attorneys involved in this case were.

20 This is a legal malpractice action basically

21 she's bringing and I'm going to give you the summary

22 of the facts of the underlying action.

23 So she entered into a settlement agreement with
24 the bank. And subsequent to that the bank reneged

25 on that. And so she hired Jennifer Englert to come

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in and fix that problem.

And Jennifer Englert proceeded to fix that

problem, but an order was never entered. And as a

result -- actually there were orders going back and

forth, but eventually the bank entered a -- proposed

an order to the judge without noticing Ms. Englert

or Ms. Winkler, basically ex parte.

And so then the Winklers were faced with I've

got an order that doesn't say what the Court ruled

10 upon and I need to get that order corrected.

11 When you read Ms. Winkler's complaint, it's

12 clear that up to that point in time Ms. Englert has

13 done everything she asked her to do. She has gone

14 ahead and got the hearing, got the ruling she

15 wanted.

16 It's just that the bank went in and filed an

17 ex parte order that was incorrect and the new judge

18 didn't know any better -- I mean, didn't know what

19 was going on and he entered the order. And so at

20 this point in time, you know, we're looking at all

21 four corners here.

22 At some point in time Ms. Winkler and

23 Ms. Englert ceased to have an attorney/client

24 representation. But she still has this problem of

25 having an incorrect order being entered. And she

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goes and hires another attorney -- or firm, Morris

and Hancock.

She learns from that firm they have one year

from the date that that order was entered to move to

vacate the order and get it corrected.

And, in fact, that new law firm, Morris and

Hancock, file on the last day of the year the motion

to vacate that incorrect order.

THE COURT: In your mind was there a clear

10 termination by Ms. Englert of her representation of
11 the Winklers?

12 MR. McDONOUGH: Well, you wouldn't be able to

13 know that from the four corners of the complaint.

14 So to answer your question, for the Motion to

15 Dismiss purposes, no, she doesn't allege that

16 there's a clear-cut end of the representation.

17 However, my argument would be as soon as she

18 hired Morris and Hancock to do this, she abandoned

19 her representation -- the representation by

20 Ms. Englert.

21 THE COURT: Okay. Is there a substitution of

22 counsel in the court file in that case?

23 MR. McDONOUGH: No, I don't think there is.

24 But they proceed to go on with that. And I

25 don't want to belabor all the points about how

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Diana K. Winkler and Michael J. Winkler vs Christopher P. Hancock, et al.
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eventually Mr. Hancock does not go and actually get

that motion to vacate the order heard, but there are

some appellate proceedings on that issue.

And eventually Ms. Winkler goes through all the

appellate remedies she can. About two years and

fifteen days before she filed this lawsuit, she gets

her motion for rehearing denied at the DCA level.

About on -- I think it was May 23rd, and she filed

this lawsuit on June 17th, I believe. Two years

10 plus later.

11 So these are the two arguments I have for

12 Ms. Englert and The Orlando Law Group. One, when

13 she hired another attorney, just assume that

14 whatever Ms. Englert -- let's say Ms. Englert did do

15 something wrong and didn't get that order vacated

16 after the bank wrongfully sent that order in. She

17 still had a year left to fix that. And she went

18 ahead and got an attorney to go ahead and fix that.

19 And she had plenty of time with that other attorney

20 to fix that.

21 So when that happened, that becomes a

22 subsequent -- if the new attorney doesn't do it

23 right, that becomes a subsequent -- that becomes an

24 intervening cause that obviates any liability of

25 Ms. Englert.

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And then the other major argument, Your Honor,

is going to be because she filed the lawsuit two
years plus from the time that she had her motion for
rehearing denied in the DCA level, she filed this
action too late, barred by the statute of

limitations.

THE COURT: Is there anything in the four
corners of the complaint that demonstrates the date
of the accrual of the malpractice claim, meaning the
10 denial of the motion for rehearing?

11 MR. McDONOUGH: That's a good question. No,

12 and that's a deficiency, not to our argument, but
13 rather to the complaint.

14 THE COURT: Doesn't that determine whether or
15 not I can address it on a Motion to Dismiss?
16 MR. McDONOUGH: Well, yes and no. As it is
17 now, based on her allegations, the statute of

18 limitations would -- the accrual would be back even
19 sooner.

20 I just -- knowing that there was more appellate
21 work done, I did go outside the four corners of the
22 complaint and say, "well, this doesn't even make any
23 difference in filing my motion because if the
24 rehearing was within two years, then this

Case Info

Judge

Vincent Falcone Track Judge’s New Case

Case No.

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Document Filed Date

February 20, 2020

Case Filing Date

June 11, 2018

County

Parties

ALVIN SCOTT Attorney for the Defendant
ANDREA A MCCREARY Defendant
ANDREA A MCCREARY A AURORA MCCREARY AKA Defendant
CHRISTOPHER P HANCOCK Defendant
CHRISTOPHER ROYER Attorney for the Plaintiff
DIANA K WINKLER Plaintiff
ERIC NEIBERGER Attorney for the Defendant
HANCOCK AND ASSOCIATES P A Defendant
HANCOCK LAW GROUP, P.A. Defendant
HANCOCK LAW GROUP, P.A. THE LAW OFFICE OF MICHAEL E. MORRIS, P.A. FKA Defendant
HYATT LEGAL PLANS OF FLORIDA INC Defendant
JENNIFER ENGLERT Defendant
JOHN MEAGHER Attorney for the Defendant
LAW OFFICE OF MICHAEL E MORRIS P A Defendant
LUXUS LEGAL LLC Defendant
MICHAEL E MORRIS Defendant
MICHAEL J WINKLER Plaintiff
MICHAEL MORRIS Attorney for the Defendant
THE ORLANDO LAW GROUP Defendant
THOMAS TUFTS Attorney for the Plaintiff
Sean McDonough Attorneys for Defendants
John Benford Attorneys for Defendants
Natalie Bourff Attorneys for Defendants
John Wyatt Attorney
John Zielinski Attorneys for Defendants
Scott Livingston Attorney
Jeffrey Landau
Christopher Phillips Attorney
Stephanie Braat Attorney
Jan Morris Attorneys for Defendants
Damon Weiss Attorneys for Plaintiffs
Michael Heilmann Attorneys for Plaintiffs
James Holland Attorneys for Plaintiffs
Brad Culpepper Attorneys for Plaintiffs
Oran Byrd Attorney
I. Weiss Attorneys for Defendants
Peter Nathan Attorney
Laurie Weatherford Attorney
Bert Barclay Attorney
Joanna Foard Attorney
Victor Ruiz Attorney
Paul Hancock Attorney
Kathryn Winkler Attorney
Michael Elliott Attorneys for Plaintiffs
Amber Humphries Attorney
Andrea Abercrombie Attorney
Christopher Royer Attorneys for Plaintiffs
Joseph Slama Attorneys for Plaintiffs
Justin Bailey Attorneys for Plaintiffs

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Motion,Ex Parte: WINKLER, DIANA Ket al. vs. HANCOCK, CHRISTOPHER Pet al.

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Case Info

Parties