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Filing # 97054504 E-Filed 10/10/2019 02:31:08 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT OF FLORIDA
IN AND FOR ORANGE COUNTY
DIANA K. WINKLER and ) Case No.: 48-2018-CA-006581
MICHAEL J. WINKLER,
Plaintiffs,
Vv
CHRISTOPHER P. HANCOCK;
LUXUS LEGAL, LLC;
HANCOCK & ASSOCIATES, P.A.;
ANDREA A. McCREARY a/k/a
A. AURORA MCCREARY; MICHAEL E
MORRIS; LAW OFFICE OF MICHAEL
E. MORRIS, P.A.; HYATT LEGAL
PLANS OF FLORIDA, INC; JENNIFER )
ENGLERT; and THE ORLANDO LAW GROUP )
Defendants,
RESPONSE IN OPPOSITION
TO DEFENDANTS JENNIFER ENGLERT
AND THE ORLANDO LAW GROUP’S MOTION TO DISMISS
AMENDED COMPLAINT, MOTION TO STRIKE, AND MEMORANDUM OF LAW
COMES NOW, the Plaintiffs, DIANA K. WINKLER and MICHAEL J.
WINKLER, by and through their undersigned attorney, and hereby
file this, the Plaintiffs’ Response in Opposition to Defendant
Jennifer Englert and The Orlando Law Group’s Motion to Dismiss
Amended Complaint and Incorporated Memorandum of Law (“Englert
MTD”) .2 The Englert MTD should be denied, for the following
‘Englert and TOLG, as defendants, together move to dismiss the
Plaintiffs’ amended complaint filed pro se, but do not appear to
address whether or not her law firm, as identified previously,
as “The Orlando Law Group,” is a properly named as a defendant
in these proceedings. Accordingly, the Winklers have filed
Plaintiffs’ Motion for Entry of Order Allowing Plaintiffs to
Amend Pleading to Correct Misnomers in Prior Amended Complaint
(filed 10/7/2019), in recognition that the proper name of the
law firm is The Orlando Law Group, PL, a Florida professional
limited liability company.
Winkler, et al., v. Hancock, et al.,; Case No.2018-CA-006581-O; CPLS File No. 3838-1
Plaintiffs’ Response in Opposition to Defendant Englert and TOLG’s Motion to Dismiss Amended Complaint; Page 2 of 17
reasons:
Overview
Based on the pro se Amended Complaint’s allegations, as
filed by the Winklers, the issue before this Court is whether
Defendant Jennifer Englert and her law firm, The Orlando Law
Group (“TOLG”) (collectively “Englert”) engaged in legal
malpractice (Count I) and were otherwise negligent (Count IV).
Englert seeks to dismiss these counts, or to strike these causes
of action. That motion should be denied, for the reasons that
follow.
Englert Recitation of
Factual Background Omits 2 Key Points
In recitation of the facts, Englert does not discuss three
(3) key points or issues that impact her motion now to be heard:
1 Englert Did Not Properly Withdrew as Counsel in the Prior
Case
At the January 7, 2019 hearing, the Court inquired of
Englert’s counsel: (1) was there & clear termination by Englert
of her representation of the Winklers [Tr. Hearing 1/7/2019,, at
6 (lines 9-11)]; (2) was there a substitution of counsel [Tr.,
Hearing 1/7/2019, at 6 (lines 21-22)]; and (3) was there was
anything then in the four corners of the complaint which
demonstrates the date of the accrual of the malpractice claim.
TEs Hearing 1/7/2019, at 8 (lines 7-10)]? Later, a discussion
Winkler, et al., v. Hancock, et al.,; Case No.2018-CA-006581-O; CPLS File No. 3838-1
Plaintiffs’ Response in Opposition to Defendant Englert and TOLG’s Motion to Dismiss Amended Complaint; Page 3 of 17
occurred specific to whether the Winklers would be alleging the
accrual of the malpractice action. Id., at 20 (lines 11-18).
When a lawyer does not properly withdraw from proceedings,
they remain on the hook, and continue to have joint
responsibility and potential liability for their acts of
malpractice that then are the proximate cause of their clients’
damages. See Golden Gate Homes, LC_v. Levey, 59 So.3d 275 (Fla.
3d DCA 2011) (lawyer for corporate entity withdraws 26 days
before scheduled trial, leaving it without ability to proceed
pro se, raising fact questions as to whether the timing of the
withdrawal constitute neglect of a legal duty, and if so,
whether such negligence was the proximate cause of the clients’
loss).
2 Englert’s Malpractice Includes Multiple Major Errors,
Commencing First When Bank Took a Voluntary Dismissal _ in
the Underlying Case, Making Efforts to Pursue a Motion to
Enforce Settlement Fruitless
When there are assertions of malpractice, these must be
clearly identified. In this case, the Winklers assert that
Englert’s errors were numerous, but that also, there were years
of unnecessary litigation, resulting from these errors. Amended
Complaint, at @7 (130)-(131). And, Englert has it wrong: the
allegations of malpractice do not solely stem from Englert’s
failure to get the improperly entered March 6, 2014 order
vacated. Englert MTD, at 3. In the Amended Complaint, at 7
(106), it is alleged that Englert’s “first major error” was to
Winkler, et al., v. Hancock, et al.,; Case No.2018-CA-006581-O; CPLS File No. 3838-1
Plaintiffs’ Response in Opposition to Defendant Englert and TOLG’s Motion to Dismiss Amended Complaint; Page 4 of 17
seek relief in 2013, by filing a motion in the prior closed case
where the action had been voluntarily dismissed. This then
terminated the jurisdiction of the prior action, which then
required Englert to file a new action (i.e., lawsuit) in order
to invoke the court’s jurisdiction. Id., 11 (107)-(108). This
is then described to have been a “fundamental legal error”
because it is doubtful that the court had any jurisdiction to
grant relief in any of the litigation, proceedings, or orders
that spanned the next few years. Id., I (110). While the
“merits” of the Winklers position is suggested by an oral
decision of the court, in deciding to grant the Englert motion,
that “win” quickly turns into a loss when she abandons them,
without disclosing all that she knew. For these reasons,
Englert’s malpractice consist of multiple errors that were not
realized by the Winklers.
It is not enough to simply say, hey I was lawyer #1, I got
out, in came lawyer #2, therefore, I am in the clear. Englert
was a plan attorney, and her firm, a member of HLP-Florida, so
it appears that she is not in direct privity with the Winklers.
Second, Englert didn’t appear to get out at all. See 9 (128).
Given that the allegations are that she “abandoned” the
Winklers, and never formally withdrew, with court order, she
remained on the hook for the events that then unfold and are
Winkler, et al. v. Hancock, et al.,; Case No.2018-CA-006581-O; CPLS File No. 3838-1
laintiffs” Response in Opposition to Defendant Englert and TOLG’s Motion to Dismiss Amended Complaint; Page 5 of 17
shown to be a proximate cause of these acts. See, e.g., qd
(238)-(242).
In Jelenc v. Draper, 678 So.2d 917 (Fla. 5% DCA 1996),
assertions of malpractice focused on the fraudulent
misrepresentations made to clients by an associate (Frein) who
was assigned a case by the head of the law firm (Charles Draper
d/b/a Draper Law Office). It turns out that Frein tells the
clients that he had filed their personal injury lawsuit in 1990,
when, in fact, he did not. After making other representations
along the way, including telling the clients that their trial
was commencing in January, 1993, Frein goes awol and doesn’t
return his clients’ calls, inquiring about the “case.” It was
in December, 1992 when the clients first learn that Frein had
been discharged from the firm and had entered an alcoholics
rehabilitation center. In February, 1993, Draper writes to the
clients advising them that he was terminating his representation
of their interests despite the fact that they had no other
attorney, and they had not “discharged” him. Draper informs
them that he is of the view that the statute of limitations
period is about to expire in July, 1993. The trial court ruled
that since the malpractice action was not filed until February,
1995, it should be dismissed. However, on appeal, the appellate
court, duly noted that the face of the complaint does not
clearly identify the asserted malpractice. For example, was it
Winkler, et al., v. Hancock, et al.,; Case No.2018-CA-006581-O; CPLS File No. 3838-1
laintiffs’ Response. position to Defendant Englert and TOLG’s Motion to Dismiss Amended Complaint; Page 6 of 17
to be the date when they found out that Draper had discharged
Frein, which was in December, 1992? Or was it when Frein
misrepresented that legal proceedings had been filed? Or is it
at some other point in time when they first learned that the
case was mishandled?
What Frein did aligns with aspects of what each of the
defendant attorneys Englert, Hancock, Morris, and McCreary did
in this case, except, unlike in Jelenc, here there is the added
difficulty arising from the involvement of a prepaid legal
expense insurance corporation (HLP-Florida). This means that
these attorney defendants and the member HLP-Florida law firms
were not in direct privity with the Winklers, and the 2-year
statute of limitations period simply does not apply. See Hickey
Vv. Dunn & Corey, 761 So.2d 1245 (Fla.3d DCA 2000) (holding that
Chapter 95.11(4) (a) excluded from the 2-year rule those cause of
actions where persons are not in direct privity with the
professional, and in such situations, the limitations period in
such situations is 4-years).
3 Plenty of Time to Do What?
For these reasons, it stands to reason that if Englert’s
primary ground for dismissal rests on the claim that Englert
” see J (128),
“abandoned their representation of Plaintiffs,
there is a material factual dispute that then arises. Englert
and TOLG assert that Plaintiffs “had plenty of time to correct
Winkler, et al., v. Hancock, et al.,; Case No.2018-CA-006581-O; CPLS File No, 3838-1
Plaintiffs’ Response in Opposition to Defendant Englert and TOLG’s Motion to Dismiss Amended Complaint; Page 7 of 17
any alleged malpractice by (Englert) and in fact did retain
Hancock and others to do so.” Englert MTD, at 2-3. What is
missing from the Englert position here is any clarity on what
Hancock or any other attorney was to have done, and when, given
their failure to have recognized that a voluntary dismissal had
been filed. See Amended Complaint, QI (237)-(242) (Count IV).
The allegation is made by the Winklers that Englert and TOLG
remained as the proximate cause as to injuries suffered in the
form of the damages listed in the prayer for relief and
otherwise in Count I, but specific to the impact on the
mortgage, for excess interest charged, and compensation, and
this is clarified in the Amended Complaint, at @2 (260).
Standard of Review
For purposes of assessing the adequacy of the pleading of a
claim, this Court is to take the factual allegations in the
complaint as true and draw all reasonable inferences in favor of
5th
the pleader. Jordan v. Neinhuis, 203 So.3d 974, 976 (Fla.
DCA 2016).
When considering a motion to dismiss, the court is to look
no further than the complaint and its attachments. Mohan _v.
Orlando Health, Inc., 163 So.3d 1231, 1233 (Fla. 5 DCA 2015).
When analyzing claims, courts are to evaluate whether the
allegations put forth are sufficient to state a claim that is
plausible on its face. Maldonado v. Orange Cty. Pub. Library
Winkler, et al. v. Hancock, et al.,; Case No.2018-CA-006581-O; CPLS File No. 3838-1
Plaintiffs’ Response in Opposition to Defendant Englert and TOLG’s Motion to Dismiss Amended Complaint; Page 8 of 17
Sys., 273 So.3d 278, 280 (Fla. 5 DCA 2019).
Argument
Plaintiffs Did Not Impermissibly Commingle Allegations
Against Multiple Defendants in a Single Count in Counts I
and IV
Englert claims that “by combining factual allegations
against multiple co-defendants in a single count (Count IV),
this somehow camouflages” a lack of factual support for the
Winklers’ claims against individual defendants. Englert is not
at all clear if she is making this allegation solely as to Count
IV, or as to both Count I and IV. Englert MTD, at 7. As
Englert contends, the Winklers have made it impossible for them
to accurately respond.
Upon closer inspection, it is hard to see how Englert could
not respond to each of the allegations in Count IV. These are
short and plain statements, appearing at Amended Complaint, {19
(231)-(270). For example, Englert could easily respond to the
initial allegations of violations of legal duty. See, e.g-,
Id., q (234) (law firms and attorneys had very specific duty to
protect the clients), Id., q ((235) (law firms and attorneys had
a duty to be candid with their clients), and Id., @ (237) (the
law firm and their lawyers were negligent in handling this
simple matter).
When things turn to what happened, commencing at @ (238),
the allegations are specific to TOLG, stating that they assigned
Winkler, et al., v. Hancock, et al.,; Case No.2018-CA-006581-O; CPLS File No. 3838-1
laintiffs’ Response in Opposition to Defendant Englert and TOLG’s Motion to Dismiss Amended Complaint; Page 9 of 17
the case to her as an attorney in the firm, and it is alleged
that TOLG was negligent in not considering the Winklers’ request
to consider opening a new action, and instead, choosing to file
a motion to compel in a closed case (i.e., one that had been
voluntarily dismissed by BANK and did not result in a judgment).
From there, it is explained how this fundamental error on the
part of Englert and TOLG is the proximate cause of much of the
trouble that followed, and was foreseeable and avoidable bya
competent practitioner exercising a reasonable level of care.
Id., at I 239. The allegation is that Englert, while with TOLG,
was negligent in failing to follow up on the win, it is then
stated that Englert was “egregiously negligent” in failing to
challenge or have the improper order vacated in a timely way. q
(241). The next allegation is that Englert was negligent when
abandoning her clients, without leave of court. Id., I (242).
These allegations are not difficult to understand. They are
hardly “impossible” to respond.
For these reasons, Englert’s arguments on this are without
merit. However, if, this Court were to disagree, and find any
merit in any of the stated concerns of Englert and TOLG, the
Winklers respectfully request an opportunity to respond,
consistent with the liberality afforded to pro se litigants, the
good faith efforts outlined above, and the presence of counsel
to further assist in the effort.
Winkler, et al., v. Hancock, et al.,; Case No.2018-CA-006581-O; CPLS File No. 3838-1
Plaintiffs’ Response in Opposition to Defendant Englert and TOLG’s Motion to Dismiss Amended Complaint; Page 10 of 17
Ir. Plaintiffs Did Not Fail to Plead a Theory of Liability As
Against Englert and TOL
A Englert’s Actions Were the Proximate Cause of
Plaintiffs’ Damages
1 Englert Did Not Withdraw, by Which to Allow for
an Intervening Cause Defense Under Frazier
Englert and TOLG jointly claim that the Winklers have to
make a factual showing that a defendant’s actions foreseeably
caused the specific harm alleged. Englert MTD, at 8. In
particular, Englert and TOLG claim that their attorney-client
relationship with the Winklers “terminated” prior to the
deadline for filing a motion to vacate the improperly issued, ex
parte order. Yet, just above this allegation, it says, Englert
“ceased representation of Plaintiffs” to then allow Plaintiffs
to “hire a new attorney.” But this is, quite simply, not what
happened.
When a lawyer does not properly withdraw from proceedings,
they remain on the hook, and continue to have joint
responsibility and potential liability for their acts of
malpractice that then are the proximate cause of their clients’
damages. See Golden Gate Homes, LC _v. Levey, 59 So.3d 275 (Fla.
3d DCA 2011) (lawyer for corporate entity withdraws 26 days
before scheduled trial, leaving it without ability to proceed
pro se, raising fact questions as to whether the timing of the
withdrawal constitute neglect of a legal duty, and if so,
Winkler, et al., v. Hancock, et al.,; Case No.2018-CA-006581-O; CPLS File No, 3838-1
laintiffs’ Response in Opposition to Defendant Englert and TOLG’s Motion to Dismiss Amended Complaint; Page 11 of 17
whether such negligence was the proximate cause of the clients’
loss)
Englert and TOLG failed to move to withdraw in accordance
with the Florida Rules of Judicial Administration 2.505(f), and
the Winklers contact HLP-Florida, “who agreed that there was a
serious problem, and provided a referral to a new law firm.”
This contact of HLP-Florida only happened after Englert is
alleged to have done nothing. Amended Complaint, at WI (28)-
(31). Furthermore, Englert is alleged to have been the
proximate cause. Id., at @ (260) (“..the proximate cause harm to
the Winklers arose from the ENGLERT’s initial errors omissions
and negligence, which should have been clearly foreseeable to a
competent practitioner”)
2 Frazier is Distinguishable
Englert argues that her and her law firm, TOLG, cannot be
held liable because they were superseded by the alleged wrong-
doing of defendant Hancock to then “cut-off” any argument of
proximate cause. Englert and TOLG look to rely on Frazier v.
Effmen, 501 So.2d 114 (Fla. 4° DCA 1987). Frazier is
distinguishable, however.
Frazier is a defense that can be asserted only in
situations where a later-retained attorney has also failed to
file suit on a client’s behalf before the statute of limitations
period lapsed. See Norton v. Sperling Law Office, P.C., 437
Winkler, et al., v. Hancock, et al.,; Case No.2018-CA-006581-O; CPLS File No. 3838-1
‘laintiffs’ Response in Opposition to Defendant Englert and TOLG’s Motion to Dismiss Amended Complaint; Page 12 of 17
F.Supp.2d 398, 402 (D.Md. 2006) (discussing Frazier) This
subsequent “failure” can serve as an intervening cause that
breaks the chain of causation arising from a prior attorney’s
negligence, to then absolve the prior attorney of liability.
Id. That principle can only apply when the conduct of the
later-retained attorney significantly interrupts the chain of
causation, however.
Here, Frazier doesn’t apply for a number of reasons.
First, it doesn’t apply when there is a legal expense insurance
corporation entering into the legal services contracts with the
member law firms and its attorneys and thereby, creating a
situation in which there is no direct privity. While there is
still an attorney-client relationship between the plan attorneys
and the clients, this necessarily means that no intervening
cause can occur. Also, under the facts of this case, none of
the defendant lawyers appear to have observed that a voluntary
dismissal had been taken by the Bank, by which to preclude the
ability to proceed on the basis of a motion to enforce. See
Dandar v. Church of Scientology Flag Service Corp., 190 So.3d
1100 (Fla 2d DCA 2016). For these reasons, the Frazier defense
cannot apply since there was nothing that defendant Hancock
could have done to rectify the situation, as a timely filing of
the motion to vacate would have had no effect.
Winkler, et al., v. Hancock, et al.,; Case No.2018-CA-006581-O; CPLS File No. 3838-1
Plaintiffs’ Response in Opposition to Defendant Englert and TOLG’s Motion to Dismiss Amended Complaint; Page 13 of 17
B Englert’s Status as the Agent of TOLG is Evident in
Ultimate Fact Pleading, to be a Sufficient Assertion
of Vicarious Liability
Englert claims that there are insufficient factual
averments by which to subject TOLG to vicarious liability, to
then establish that Englert is the agent of TOLG. As noted in
the Plaintiffs’ Motion for Entry of Order Allowing Plaintiffs to
Amend Pleading to Correct Misnomers in Prior Amended Complaint,
a review of sunbiz.org records reveals that the correct name of
TOLG is The Orlando Law Group, PL, and that at all times
relevant, Englert was the managing member of this law firm. The
averments at (9 13 and 105 further establish that Englert is the
agent of the law firm, and its managing member (i.e., owner).
Furthermore, in all prayers for relief, in Count I and IV, TOLG
was mentioned as jointly and severally liable. Nevertheless,
notwithstanding the foregoing, if specific allegations as to the
managing member role of Englert, vis-a-vis TOLG, by which the
member firm is vicariously liable need to be more succinctly
plead, the Winklers would be willing to do so.
IIr. Silvestrone Does Not Apply to Legal Services Plans and
Group Legal Plans or In a Jelenc Situation
A This is Not a Case That Proceeded to Final Judgment or
One Purely of Actionable Litigation Malpractice
Englert attempts to claim that a bright-line application of
the 2-year statute of limitations can be applied to dispose of
the Amended Complaint. Englert boldly declares that there are
Winkler, et al., v. Hancock, et al.,; Case No.2018-CA-006581-O; CPLS File No. 3838-1
laintiffs’ Response in Opposition to Defendant Englert and TOLG’s Motion to Dismiss Amended Complaint; Page 14 of 17
no set of facts that the Winklers could allege to then avoid a
statute of limitations defense in this case.
This is false. For starters, the 2-year statute of
limitations period does not apply when attorneys face legal
malpractice claims and other similar claims arising from
arrangements that involve prepaid legal services plans and legal
expense insurance like those offered by HLP-Florida in this
case. Hickey v. Dunn & Corey, 761 So.2d 1245 (Fla.3d DCA
2000) (holding that Chapter 95.11(4) (a) excluded from the 2-year
rule those cause of actions where persons are not in direct
privity with the professional, and in such situations, the
limitations period in such situations is 4-years).
B This is Another Jelenc Situation, Creating a Disputed
Factual Issue on Accrual of the Statute of Limitations
Furthermore, the four corners of the Amended Complaint
simply do not establish a single claim of malpractice; rather,
there are a myriad of malpractice claims and breaches of duty
giving rise to negligence and claims for false and misleading
advertising As it was in Jelenc, discussed previously, the
face of the complaint simply does not reflect on a date showing
when the Winklers knew or should have known that Englert and
Hancock and their respective law firms had themselves become
aware of the voluntary dismissal taken by the Bank that then
negated the effort to negate the ex parte order the bank
obtained on the motion to enforce the settlement. Instead, the
Winkler, et al., v. Hancock, et al.,; Case No.2018-CA-006581-O; CPLS File No. 3838-1
‘laintiffs’ Response in Opposition to Defendant Englert and TOLG’s Motion to Dismiss Amended Complaint; Page 15 of 17
repetitive nature of the horrific actions of defendant attorneys
in this case render this a factual dispute.
For these reasons, the Amended
Preview
Filing # 97054504 E-Filed 10/10/2019 02:31:08 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR ORANGE COUNTY DIANA K. WINKLER and ) Case No.: 48-2018-CA-006581 MICHAEL J. WINKLER, Plaintiffs, Vv CHRISTOPHER P. HANCOCK; LUXUS LEGAL, LLC; HANCOCK & ASSOCIATES, P.A.; ANDREA A. McCREARY a/k/a A. AURORA MCCREARY; MICHAEL E MORRIS; LAW OFFICE OF MICHAEL E. MORRIS, P.A.; HYATT LEGAL PLANS OF FLORIDA, INC; JENNIFER ) ENGLERT; and THE ORLANDO LAW GROUP ) Defendants, RESPONSE IN OPPOSITION TO DEFENDANTS JENNIFER ENGLERT AND THE ORLANDO LAW GROUP’S MOTION TO DISMISS AMENDED COMPLAINT, MOTION TO STRIKE, AND MEMORANDUM OF LAW COMES NOW, the Plaintiffs, DIANA K. WINKLER and MICHAEL J. WINKLER, by and through their undersigned attorney, and hereby file this, the Plaintiffs’ Response in Opposition to Defendant Jennifer Englert and The Orlando Law Group’s Motion to Dismiss Amended Complaint and Incorporated Memorandum of Law (“Englert MTD”) .2 The Englert MTD should be denied, for the following ‘Englert and TOLG, as defendants, together move to dismiss the Plaintiffs’ amended complaint filed pro se, but do not appear to address whether or not her law firm, as identified previously, as “The Orlando Law Group,” is a properly named as a defendant in these proceedings. Accordingly, the Winklers have filed Plaintiffs’ Motion for Entry of Order Allowing Plaintiffs to Amend Pleading to Correct Misnomers in Prior Amended Complaint (filed 10/7/2019), in recognition that the proper name of the law firm is The Orlando Law Group, PL, a Florida professional limited liability company. Winkler, et al., v. Hancock, et al.,; Case No.2018-CA-006581-O; CPLS File No. 3838-1 Plaintiffs’ Response in Opposition to Defendant Englert and TOLG’s Motion to Dismiss Amended Complaint; Page 2 of 17 reasons: Overview Based on the pro se Amended Complaint’s allegations, as filed by the Winklers, the issue before this Court is whether Defendant Jennifer Englert and her law firm, The Orlando Law Group (“TOLG”) (collectively “Englert”) engaged in legal malpractice (Count I) and were otherwise negligent (Count IV). Englert seeks to dismiss these counts, or to strike these causes of action. That motion should be denied, for the reasons that follow. Englert Recitation of Factual Background Omits 2 Key Points In recitation of the facts, Englert does not discuss three (3) key points or issues that impact her motion now to be heard: 1 Englert Did Not Properly Withdrew as Counsel in the Prior Case At the January 7, 2019 hearing, the Court inquired of Englert’s counsel: (1) was there & clear termination by Englert of her representation of the Winklers [Tr. Hearing 1/7/2019,, at 6 (lines 9-11)]; (2) was there a substitution of counsel [Tr., Hearing 1/7/2019, at 6 (lines 21-22)]; and (3) was there was anything then in the four corners of the complaint which demonstrates the date of the accrual of the malpractice claim. TEs Hearing 1/7/2019, at 8 (lines 7-10)]? Later, a discussion Winkler, et al., v. Hancock, et al.,; Case No.2018-CA-006581-O; CPLS File No. 3838-1 Plaintiffs’ Response in Opposition to Defendant Englert and TOLG’s Motion to Dismiss Amended Complaint; Page 3 of 17 occurred specific to whether the Winklers would be alleging the accrual of the malpractice action. Id., at 20 (lines 11-18). When a lawyer does not properly withdraw from proceedings, they remain on the hook, and continue to have joint responsibility and potential liability for their acts of malpractice that then are the proximate cause of their clients’ damages. See Golden Gate Homes, LC_v. Levey, 59 So.3d 275 (Fla. 3d DCA 2011) (lawyer for corporate entity withdraws 26 days before scheduled trial, leaving it without ability to proceed pro se, raising fact questions as to whether the timing of the withdrawal constitute neglect of a legal duty, and if so, whether such negligence was the proximate cause of the clients’ loss). 2 Englert’s Malpractice Includes Multiple Major Errors, Commencing First When Bank Took a Voluntary Dismissal _ in the Underlying Case, Making Efforts to Pursue a Motion to Enforce Settlement Fruitless When there are assertions of malpractice, these must be clearly identified. In this case, the Winklers assert that Englert’s errors were numerous, but that also, there were years of unnecessary litigation, resulting from these errors. Amended Complaint, at @7 (130)-(131). And, Englert has it wrong: the allegations of malpractice do not solely stem from Englert’s failure to get the improperly entered March 6, 2014 order vacated. Englert MTD, at 3. In the Amended Complaint, at 7 (106), it is alleged that Englert’s “first major error” was to Winkler, et al., v. Hancock, et al.,; Case No.2018-CA-006581-O; CPLS File No. 3838-1 Plaintiffs’ Response in Opposition to Defendant Englert and TOLG’s Motion to Dismiss Amended Complaint; Page 4 of 17 seek relief in 2013, by filing a motion in the prior closed case where the action had been voluntarily dismissed. This then terminated the jurisdiction of the prior action, which then required Englert to file a new action (i.e., lawsuit) in order to invoke the court’s jurisdiction. Id., 11 (107)-(108). This is then described to have been a “fundamental legal error” because it is doubtful that the court had any jurisdiction to grant relief in any of the litigation, proceedings, or orders that spanned the next few years. Id., I (110). While the “merits” of the Winklers position is suggested by an oral decision of the court, in deciding to grant the Englert motion, that “win” quickly turns into a loss when she abandons them, without disclosing all that she knew. For these reasons, Englert’s malpractice consist of multiple errors that were not realized by the Winklers. It is not enough to simply say, hey I was lawyer #1, I got out, in came lawyer #2, therefore, I am in the clear. Englert was a plan attorney, and her firm, a member of HLP-Florida, so it appears that she is not in direct privity with the Winklers. Second, Englert didn’t appear to get out at all. See 9 (128). Given that the allegations are that she “abandoned” the Winklers, and never formally withdrew, with court order, she remained on the hook for the events that then unfold and are Winkler, et al. v. Hancock, et al.,; Case No.2018-CA-006581-O; CPLS File No. 3838-1 laintiffs” Response in Opposition to Defendant Englert and TOLG’s Motion to Dismiss Amended Complaint; Page 5 of 17 shown to be a proximate cause of these acts. See, e.g., qd (238)-(242). In Jelenc v. Draper, 678 So.2d 917 (Fla. 5% DCA 1996), assertions of malpractice focused on the fraudulent misrepresentations made to clients by an associate (Frein) who was assigned a case by the head of the law firm (Charles Draper d/b/a Draper Law Office). It turns out that Frein tells the clients that he had filed their personal injury lawsuit in 1990, when, in fact, he did not. After making other representations along the way, including telling the clients that their trial was commencing in January, 1993, Frein goes awol and doesn’t return his clients’ calls, inquiring about the “case.” It was in December, 1992 when the clients first learn that Frein had been discharged from the firm and had entered an alcoholics rehabilitation center. In February, 1993, Draper writes to the clients advising them that he was terminating his representation of their interests despite the fact that they had no other attorney, and they had not “discharged” him. Draper informs them that he is of the view that the statute of limitations period is about to expire in July, 1993. The trial court ruled that since the malpractice action was not filed until February, 1995, it should be dismissed. However, on appeal, the appellate court, duly noted that the face of the complaint does not clearly identify the asserted malpractice. For example, was it Winkler, et al., v. Hancock, et al.,; Case No.2018-CA-006581-O; CPLS File No. 3838-1 laintiffs’ Response. position to Defendant Englert and TOLG’s Motion to Dismiss Amended Complaint; Page 6 of 17 to be the date when they found out that Draper had discharged Frein, which was in December, 1992? Or was it when Frein misrepresented that legal proceedings had been filed? Or is it at some other point in time when they first learned that the case was mishandled? What Frein did aligns with aspects of what each of the defendant attorneys Englert, Hancock, Morris, and McCreary did in this case, except, unlike in Jelenc, here there is the added difficulty arising from the involvement of a prepaid legal expense insurance corporation (HLP-Florida). This means that these attorney defendants and the member HLP-Florida law firms were not in direct privity with the Winklers, and the 2-year statute of limitations period simply does not apply. See Hickey Vv. Dunn & Corey, 761 So.2d 1245 (Fla.3d DCA 2000) (holding that Chapter 95.11(4) (a) excluded from the 2-year rule those cause of actions where persons are not in direct privity with the professional, and in such situations, the limitations period in such situations is 4-years). 3 Plenty of Time to Do What? For these reasons, it stands to reason that if Englert’s primary ground for dismissal rests on the claim that Englert ” see J (128), “abandoned their representation of Plaintiffs, there is a material factual dispute that then arises. Englert and TOLG assert that Plaintiffs “had plenty of time to correct Winkler, et al., v. Hancock, et al.,; Case No.2018-CA-006581-O; CPLS File No, 3838-1 Plaintiffs’ Response in Opposition to Defendant Englert and TOLG’s Motion to Dismiss Amended Complaint; Page 7 of 17 any alleged malpractice by (Englert) and in fact did retain Hancock and others to do so.” Englert MTD, at 2-3. What is missing from the Englert position here is any clarity on what Hancock or any other attorney was to have done, and when, given their failure to have recognized that a voluntary dismissal had been filed. See Amended Complaint, QI (237)-(242) (Count IV). The allegation is made by the Winklers that Englert and TOLG remained as the proximate cause as to injuries suffered in the form of the damages listed in the prayer for relief and otherwise in Count I, but specific to the impact on the mortgage, for excess interest charged, and compensation, and this is clarified in the Amended Complaint, at @2 (260). Standard of Review For purposes of assessing the adequacy of the pleading of a claim, this Court is to take the factual allegations in the complaint as true and draw all reasonable inferences in favor of 5th the pleader. Jordan v. Neinhuis, 203 So.3d 974, 976 (Fla. DCA 2016). When considering a motion to dismiss, the court is to look no further than the complaint and its attachments. Mohan _v. Orlando Health, Inc., 163 So.3d 1231, 1233 (Fla. 5 DCA 2015). When analyzing claims, courts are to evaluate whether the allegations put forth are sufficient to state a claim that is plausible on its face. Maldonado v. Orange Cty. Pub. Library Winkler, et al. v. Hancock, et al.,; Case No.2018-CA-006581-O; CPLS File No. 3838-1 Plaintiffs’ Response in Opposition to Defendant Englert and TOLG’s Motion to Dismiss Amended Complaint; Page 8 of 17 Sys., 273 So.3d 278, 280 (Fla. 5 DCA 2019). Argument Plaintiffs Did Not Impermissibly Commingle Allegations Against Multiple Defendants in a Single Count in Counts I and IV Englert claims that “by combining factual allegations against multiple co-defendants in a single count (Count IV), this somehow camouflages” a lack of factual support for the Winklers’ claims against individual defendants. Englert is not at all clear if she is making this allegation solely as to Count IV, or as to both Count I and IV. Englert MTD, at 7. As Englert contends, the Winklers have made it impossible for them to accurately respond. Upon closer inspection, it is hard to see how Englert could not respond to each of the allegations in Count IV. These are short and plain statements, appearing at Amended Complaint, {19 (231)-(270). For example, Englert could easily respond to the initial allegations of violations of legal duty. See, e.g-, Id., q (234) (law firms and attorneys had very specific duty to protect the clients), Id., q ((235) (law firms and attorneys had a duty to be candid with their clients), and Id., @ (237) (the law firm and their lawyers were negligent in handling this simple matter). When things turn to what happened, commencing at @ (238), the allegations are specific to TOLG, stating that they assigned Winkler, et al., v. Hancock, et al.,; Case No.2018-CA-006581-O; CPLS File No. 3838-1 laintiffs’ Response in Opposition to Defendant Englert and TOLG’s Motion to Dismiss Amended Complaint; Page 9 of 17 the case to her as an attorney in the firm, and it is alleged that TOLG was negligent in not considering the Winklers’ request to consider opening a new action, and instead, choosing to file a motion to compel in a closed case (i.e., one that had been voluntarily dismissed by BANK and did not result in a judgment). From there, it is explained how this fundamental error on the part of Englert and TOLG is the proximate cause of much of the trouble that followed, and was foreseeable and avoidable bya competent practitioner exercising a reasonable level of care. Id., at I 239. The allegation is that Englert, while with TOLG, was negligent in failing to follow up on the win, it is then stated that Englert was “egregiously negligent” in failing to challenge or have the improper order vacated in a timely way. q (241). The next allegation is that Englert was negligent when abandoning her clients, without leave of court. Id., I (242). These allegations are not difficult to understand. They are hardly “impossible” to respond. For these reasons, Englert’s arguments on this are without merit. However, if, this Court were to disagree, and find any merit in any of the stated concerns of Englert and TOLG, the Winklers respectfully request an opportunity to respond, consistent with the liberality afforded to pro se litigants, the good faith efforts outlined above, and the presence of counsel to further assist in the effort. Winkler, et al., v. Hancock, et al.,; Case No.2018-CA-006581-O; CPLS File No. 3838-1 Plaintiffs’ Response in Opposition to Defendant Englert and TOLG’s Motion to Dismiss Amended Complaint; Page 10 of 17 Ir. Plaintiffs Did Not Fail to Plead a Theory of Liability As Against Englert and TOL A Englert’s Actions Were the Proximate Cause of Plaintiffs’ Damages 1 Englert Did Not Withdraw, by Which to Allow for an Intervening Cause Defense Under Frazier Englert and TOLG jointly claim that the Winklers have to make a factual showing that a defendant’s actions foreseeably caused the specific harm alleged. Englert MTD, at 8. In particular, Englert and TOLG claim that their attorney-client relationship with the Winklers “terminated” prior to the deadline for filing a motion to vacate the improperly issued, ex parte order. Yet, just above this allegation, it says, Englert “ceased representation of Plaintiffs” to then allow Plaintiffs to “hire a new attorney.” But this is, quite simply, not what happened. When a lawyer does not properly withdraw from proceedings, they remain on the hook, and continue to have joint responsibility and potential liability for their acts of malpractice that then are the proximate cause of their clients’ damages. See Golden Gate Homes, LC _v. Levey, 59 So.3d 275 (Fla. 3d DCA 2011) (lawyer for corporate entity withdraws 26 days before scheduled trial, leaving it without ability to proceed pro se, raising fact questions as to whether the timing of the withdrawal constitute neglect of a legal duty, and if so, Winkler, et al., v. Hancock, et al.,; Case No.2018-CA-006581-O; CPLS File No, 3838-1 laintiffs’ Response in Opposition to Defendant Englert and TOLG’s Motion to Dismiss Amended Complaint; Page 11 of 17 whether such negligence was the proximate cause of the clients’ loss) Englert and TOLG failed to move to withdraw in accordance with the Florida Rules of Judicial Administration 2.505(f), and the Winklers contact HLP-Florida, “who agreed that there was a serious problem, and provided a referral to a new law firm.” This contact of HLP-Florida only happened after Englert is alleged to have done nothing. Amended Complaint, at WI (28)- (31). Furthermore, Englert is alleged to have been the proximate cause. Id., at @ (260) (“..the proximate cause harm to the Winklers arose from the ENGLERT’s initial errors omissions and negligence, which should have been clearly foreseeable to a competent practitioner”) 2 Frazier is Distinguishable Englert argues that her and her law firm, TOLG, cannot be held liable because they were superseded by the alleged wrong- doing of defendant Hancock to then “cut-off” any argument of proximate cause. Englert and TOLG look to rely on Frazier v. Effmen, 501 So.2d 114 (Fla. 4° DCA 1987). Frazier is distinguishable, however. Frazier is a defense that can be asserted only in situations where a later-retained attorney has also failed to file suit on a client’s behalf before the statute of limitations period lapsed. See Norton v. Sperling Law Office, P.C., 437 Winkler, et al., v. Hancock, et al.,; Case No.2018-CA-006581-O; CPLS File No. 3838-1 ‘laintiffs’ Response in Opposition to Defendant Englert and TOLG’s Motion to Dismiss Amended Complaint; Page 12 of 17 F.Supp.2d 398, 402 (D.Md. 2006) (discussing Frazier) This subsequent “failure” can serve as an intervening cause that breaks the chain of causation arising from a prior attorney’s negligence, to then absolve the prior attorney of liability. Id. That principle can only apply when the conduct of the later-retained attorney significantly interrupts the chain of causation, however. Here, Frazier doesn’t apply for a number of reasons. First, it doesn’t apply when there is a legal expense insurance corporation entering into the legal services contracts with the member law firms and its attorneys and thereby, creating a situation in which there is no direct privity. While there is still an attorney-client relationship between the plan attorneys and the clients, this necessarily means that no intervening cause can occur. Also, under the facts of this case, none of the defendant lawyers appear to have observed that a voluntary dismissal had been taken by the Bank, by which to preclude the ability to proceed on the basis of a motion to enforce. See Dandar v. Church of Scientology Flag Service Corp., 190 So.3d 1100 (Fla 2d DCA 2016). For these reasons, the Frazier defense cannot apply since there was nothing that defendant Hancock could have done to rectify the situation, as a timely filing of the motion to vacate would have had no effect. Winkler, et al., v. Hancock, et al.,; Case No.2018-CA-006581-O; CPLS File No. 3838-1 Plaintiffs’ Response in Opposition to Defendant Englert and TOLG’s Motion to Dismiss Amended Complaint; Page 13 of 17 B Englert’s Status as the Agent of TOLG is Evident in Ultimate Fact Pleading, to be a Sufficient Assertion of Vicarious Liability Englert claims that there are insufficient factual averments by which to subject TOLG to vicarious liability, to then establish that Englert is the agent of TOLG. As noted in the Plaintiffs’ Motion for Entry of Order Allowing Plaintiffs to Amend Pleading to Correct Misnomers in Prior Amended Complaint, a review of sunbiz.org records reveals that the correct name of TOLG is The Orlando Law Group, PL, and that at all times relevant, Englert was the managing member of this law firm. The averments at (9 13 and 105 further establish that Englert is the agent of the law firm, and its managing member (i.e., owner). Furthermore, in all prayers for relief, in Count I and IV, TOLG was mentioned as jointly and severally liable. Nevertheless, notwithstanding the foregoing, if specific allegations as to the managing member role of Englert, vis-a-vis TOLG, by which the member firm is vicariously liable need to be more succinctly plead, the Winklers would be willing to do so. IIr. Silvestrone Does Not Apply to Legal Services Plans and Group Legal Plans or In a Jelenc Situation A This is Not a Case That Proceeded to Final Judgment or One Purely of Actionable Litigation Malpractice Englert attempts to claim that a bright-line application of the 2-year statute of limitations can be applied to dispose of the Amended Complaint. Englert boldly declares that there are Winkler, et al., v. Hancock, et al.,; Case No.2018-CA-006581-O; CPLS File No. 3838-1 laintiffs’ Response in Opposition to Defendant Englert and TOLG’s Motion to Dismiss Amended Complaint; Page 14 of 17 no set of facts that the Winklers could allege to then avoid a statute of limitations defense in this case. This is false. For starters, the 2-year statute of limitations period does not apply when attorneys face legal malpractice claims and other similar claims arising from arrangements that involve prepaid legal services plans and legal expense insurance like those offered by HLP-Florida in this case. Hickey v. Dunn & Corey, 761 So.2d 1245 (Fla.3d DCA 2000) (holding that Chapter 95.11(4) (a) excluded from the 2-year rule those cause of actions where persons are not in direct privity with the professional, and in such situations, the limitations period in such situations is 4-years). B This is Another Jelenc Situation, Creating a Disputed Factual Issue on Accrual of the Statute of Limitations Furthermore, the four corners of the Amended Complaint simply do not establish a single claim of malpractice; rather, there are a myriad of malpractice claims and breaches of duty giving rise to negligence and claims for false and misleading advertising As it was in Jelenc, discussed previously, the face of the complaint simply does not reflect on a date showing when the Winklers knew or should have known that Englert and Hancock and their respective law firms had themselves become aware of the voluntary dismissal taken by the Bank that then negated the effort to negate the ex parte order the bank obtained on the motion to enforce the settlement. Instead, the Winkler, et al., v. Hancock, et al.,; Case No.2018-CA-006581-O; CPLS File No. 3838-1 ‘laintiffs’ Response in Opposition to Defendant Englert and TOLG’s Motion to Dismiss Amended Complaint; Page 15 of 17 repetitive nature of the horrific actions of defendant attorneys in this case render this a factual dispute. For these reasons, the Amended