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Filing # 88476579 E-Filed 04/24/2019 03:48:03 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.
________________________________/
RENEWED MOTION TO DISMISS OR IN THE ALTERNATIVE
FOR A MORE DEFINITE STATEMENT
COMES NOW the Defendant, ANDREA AURORA MCCREARY (hereinafter
“AURORA MCCREARY”) , and hereby files this, her Renewed Motion to Dismiss or in the
Alternative for a More Definite Statement and states as follows:
History
1. The Plaintiffs previously filed a four (4) count Complaint.
2. On or about January 29, 2019, an order was signed dismissing the Plaintiffs’
Complaint without prejudice and granting the Plaintiffs the right to amend within twenty (20)
days.
3. On or about February 13, 2019 the Plaintiffs filed their Motion for Rehearing,
Clarification & Reconsideration.
4. On or about February 16, 2019, the Plaintiffs filed their Motion for
Enlargement/Extension of Time requesting the twenty (20) day time clock to toll until a ruling
was made on their Motion for Rehearing, Clarification & Reconsideration.
5. On or about March 27, 2019, an order was signed denying Plaintiffs’ Motion for
Rehearing, Clarification & Reconsideration.
6. On or about April 24, 2019, the Plaintiffs filed a three (3) Amended Complaint.
7. Count I is for “LEGAL MALPRACTICE” against The Orlando Law Group and
Jennifer Englert. The Defendant, AURORA MCCREARY, is never mentioned in the allegations
nor the wherefore clause.
8. Count II is for “LEGAL MALPRACTICE” against Hancock et all. The
Defendant, AURORA MCCREARY, is mentioned as an employee and a partner of the
Defendant, CHRISTOPHER P. HANCOCK.
9. Count III is for “FRAUDULENT MISREPRESENTATION & MISLEADING
ADVERTISEMENT” against HYATT. The Defendant, AURORA MCCREARY, is never
mentioned in the allegations nor the wherefore clause.
10. As the only Count addressed as being against the Defendant, AURORA
MCCREARY, she will only address Count II.
Dismissal
11. The Plaintiffs’ Complaint should be dismissed for the following reasons
a. The Plaintiffs’ Amended Complaint was filed beyond the twenty (20) day
deadline specified by the Order dated January 29, 2019.
b. The Plaintiffs fails to plead the necessary and required elements to bring a
cause of action for Legal Malpractice.
12. The order dated January 29, 2019, specifically stated that the Plaintiffs had twenty
(20) days to file an Amended Complaint.
13. The order dated March 27, 2019, denied Plaintiffs’ Motion for Rehearing,
Clarification & Reconsideration but did not grant the Plaintiffs’ Motion for Extension.
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14. The Amended Complaint was filed fifty-four (54) days after the Order dated
January 29, 2019.
15. The Amended Complaint was filed twenty-eight (28) days after the Order dated
March 27, 2019.
16. Thus, even assuming the order dated March 27, 2019, began the clock for the
Plaintiffs’ right to amend, the Plaintiffs’ filing of their Amended Complaint was beyond the
deadline set by the Court and thus, should be dismissed.
17. 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).
18. The Plaintiffs’ claims state they hired the firm, MORRIS AND HANCOCK, P.A.,
l/k/a MCCREARY & HANCOCK, for their matter.
19. The Plaintiffs’ claims state the Defendant, AURORA MCCREARY, was a
“member” of the law firm McCreary & Hancock.
20. Although not defined, the Defendant, AURORA MCCREARY, will admit she
was a “member” of McCreary & Hancock to the extent “member” means employee.
21. The Plaintiffs’ claims state they communicated with the Defendant,
CHRISTOPHER HANCOCK, and the Defendant, MORRIS, regarding their case matter.
22. The Plaintiffs never plead that they communicated, had interactions, or even had
the allusion of contact or a relationship with the Defendant, AURORA MCCREARY.
23. The Plaintiffs never plead that the Defendant, AURORA MCCREARY, created
any sort of relationship with them or their case.
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24. The Plaintiffs never plead that the Defendant, AURORA MCCREARY, had a
duty to them or their case.
25. The Plaintiffs never plead that the Defendant, AURORA MCCREARY, was
negligent and that said negligence was the proximate cause of the loss to the client.
26. Although “formalistic rules of common law pleading have been replaced by the
more liberal ‘notice pleading,’ it remains necessary in the setting of a legal malpractice case to
plead more than the naked legal conclusion that the defendant was negligent.” Arky, Freed,
Stearns, Watson, Greer, Weaver & Harris v. Bowmar Instrument Corp., 527 So.2d 211, 212
(Fla. 3d DCA 1987), disapproved of on other grounds, 537 So.2d 561 (Fla.1988). See also
Brown v. Gardens by the Sea South Condominium Ass'n, 424 So.2d 181, 183 (Fla. 4th DCA
1983) (“Florida uses what is commonly considered as a notice pleading concept and it is a
fundamental rule that the claims and ultimate facts supporting same must be alleged. The reason
for the rule is to appraise [sic] the other party of the nature of the contentions that he will be
called upon to meet, and to enable the court to decide whether same are sufficient.”).
27. The Plaintiffs’ Amended Complaint does not state what the Defendant, AURORA
MCCREARY, may have done any wrong and does not illuminate any of the specifics of the
alleged malpractice. The complaint alleges that the Defendant, AURORA MCCREARY, only
connection was that she partook in the assets as distribution as a “member.” The complaint fails
to provide actual facts of the Defendant, AURORA MCCREARY other than her employment.
28. The allegation that the Defendant, AURORA MCCREARY, partook in member
distributions is insufficient to support the legal malpractice claim as the alleged damages do not
flow from the distributions to members.
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29. The allegation that the Defendant, AURORA MCCREARY, knew or should have
known of the Defendant’s CHRISTOPHER HANCOCK, incompetence is an insufficient legal
conclusion, and not an ultimate fact.
30. In actions for legal malpractice the loss must not be merely speculative. See Coble
v. Aronson, 647 So.2d 968, 971 (Fla. 4th DCA 1994), review denied sub nom. Fine, Jacobson,
Schwartz, Nash, Block & England, P.A. v. Coble, 659 So.2d 1086 (Fla.1995).
31. Furthermore, the Plaintiffs request an award of damages but fail to plead suffering
any damages, lack standing for relief, and are speculative and improper.
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:
Diana & Michael Winkler (DianaKWinkler@gmail.com); Michael Morris
(memorrislaw@gmail.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);
Jennifer Englert (sean.mcdonough@wilsonelser.com) this 24th day of April, 2019.
/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.com
dweiss@wgworl.com
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Preview
Filing # 88476579 E-Filed 04/24/2019 03:48:03 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. ________________________________/ RENEWED MOTION TO DISMISS OR IN THE ALTERNATIVE FOR A MORE DEFINITE STATEMENT COMES NOW the Defendant, ANDREA AURORA MCCREARY (hereinafter “AURORA MCCREARY”) , and hereby files this, her Renewed Motion to Dismiss or in the Alternative for a More Definite Statement and states as follows: History 1. The Plaintiffs previously filed a four (4) count Complaint. 2. On or about January 29, 2019, an order was signed dismissing the Plaintiffs’ Complaint without prejudice and granting the Plaintiffs the right to amend within twenty (20) days. 3. On or about February 13, 2019 the Plaintiffs filed their Motion for Rehearing, Clarification & Reconsideration. 4. On or about February 16, 2019, the Plaintiffs filed their Motion for Enlargement/Extension of Time requesting the twenty (20) day time clock to toll until a ruling was made on their Motion for Rehearing, Clarification & Reconsideration. 5. On or about March 27, 2019, an order was signed denying Plaintiffs’ Motion for Rehearing, Clarification & Reconsideration. 6. On or about April 24, 2019, the Plaintiffs filed a three (3) Amended Complaint. 7. Count I is for “LEGAL MALPRACTICE” against The Orlando Law Group and Jennifer Englert. The Defendant, AURORA MCCREARY, is never mentioned in the allegations nor the wherefore clause. 8. Count II is for “LEGAL MALPRACTICE” against Hancock et all. The Defendant, AURORA MCCREARY, is mentioned as an employee and a partner of the Defendant, CHRISTOPHER P. HANCOCK. 9. Count III is for “FRAUDULENT MISREPRESENTATION & MISLEADING ADVERTISEMENT” against HYATT. The Defendant, AURORA MCCREARY, is never mentioned in the allegations nor the wherefore clause. 10. As the only Count addressed as being against the Defendant, AURORA MCCREARY, she will only address Count II. Dismissal 11. The Plaintiffs’ Complaint should be dismissed for the following reasons a. The Plaintiffs’ Amended Complaint was filed beyond the twenty (20) day deadline specified by the Order dated January 29, 2019. b. The Plaintiffs fails to plead the necessary and required elements to bring a cause of action for Legal Malpractice. 12. The order dated January 29, 2019, specifically stated that the Plaintiffs had twenty (20) days to file an Amended Complaint. 13. The order dated March 27, 2019, denied Plaintiffs’ Motion for Rehearing, Clarification & Reconsideration but did not grant the Plaintiffs’ Motion for Extension. 2 14. The Amended Complaint was filed fifty-four (54) days after the Order dated January 29, 2019. 15. The Amended Complaint was filed twenty-eight (28) days after the Order dated March 27, 2019. 16. Thus, even assuming the order dated March 27, 2019, began the clock for the Plaintiffs’ right to amend, the Plaintiffs’ filing of their Amended Complaint was beyond the deadline set by the Court and thus, should be dismissed. 17. 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). 18. The Plaintiffs’ claims state they hired the firm, MORRIS AND HANCOCK, P.A., l/k/a MCCREARY & HANCOCK, for their matter. 19. The Plaintiffs’ claims state the Defendant, AURORA MCCREARY, was a “member” of the law firm McCreary & Hancock. 20. Although not defined, the Defendant, AURORA MCCREARY, will admit she was a “member” of McCreary & Hancock to the extent “member” means employee. 21. The Plaintiffs’ claims state they communicated with the Defendant, CHRISTOPHER HANCOCK, and the Defendant, MORRIS, regarding their case matter. 22. The Plaintiffs never plead that they communicated, had interactions, or even had the allusion of contact or a relationship with the Defendant, AURORA MCCREARY. 23. The Plaintiffs never plead that the Defendant, AURORA MCCREARY, created any sort of relationship with them or their case. 3 24. The Plaintiffs never plead that the Defendant, AURORA MCCREARY, had a duty to them or their case. 25. The Plaintiffs never plead that the Defendant, AURORA MCCREARY, was negligent and that said negligence was the proximate cause of the loss to the client. 26. Although “formalistic rules of common law pleading have been replaced by the more liberal ‘notice pleading,’ it remains necessary in the setting of a legal malpractice case to plead more than the naked legal conclusion that the defendant was negligent.” Arky, Freed, Stearns, Watson, Greer, Weaver & Harris v. Bowmar Instrument Corp., 527 So.2d 211, 212 (Fla. 3d DCA 1987), disapproved of on other grounds, 537 So.2d 561 (Fla.1988). See also Brown v. Gardens by the Sea South Condominium Ass'n, 424 So.2d 181, 183 (Fla. 4th DCA 1983) (“Florida uses what is commonly considered as a notice pleading concept and it is a fundamental rule that the claims and ultimate facts supporting same must be alleged. The reason for the rule is to appraise [sic] the other party of the nature of the contentions that he will be called upon to meet, and to enable the court to decide whether same are sufficient.”). 27. The Plaintiffs’ Amended Complaint does not state what the Defendant, AURORA MCCREARY, may have done any wrong and does not illuminate any of the specifics of the alleged malpractice. The complaint alleges that the Defendant, AURORA MCCREARY, only connection was that she partook in the assets as distribution as a “member.” The complaint fails to provide actual facts of the Defendant, AURORA MCCREARY other than her employment. 28. The allegation that the Defendant, AURORA MCCREARY, partook in member distributions is insufficient to support the legal malpractice claim as the alleged damages do not flow from the distributions to members. 4 29. The allegation that the Defendant, AURORA MCCREARY, knew or should have known of the Defendant’s CHRISTOPHER HANCOCK, incompetence is an insufficient legal conclusion, and not an ultimate fact. 30. In actions for legal malpractice the loss must not be merely speculative. See Coble v. Aronson, 647 So.2d 968, 971 (Fla. 4th DCA 1994), review denied sub nom. Fine, Jacobson, Schwartz, Nash, Block & England, P.A. v. Coble, 659 So.2d 1086 (Fla.1995). 31. Furthermore, the Plaintiffs request an award of damages but fail to plead suffering any damages, lack standing for relief, and are speculative and improper. 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: Diana & Michael Winkler (DianaKWinkler@gmail.com); Michael Morris (memorrislaw@gmail.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); Jennifer Englert (sean.mcdonough@wilsonelser.com) this 24th day of April, 2019. /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.com dweiss@wgworl.com 5