Preview
Filing # 77065452 E-Filed 08/27/2018 04:09:30 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
CIVIL DIVISION
DIANA K. WINKLER and CASE NO.: 2018-CA-006581-O
MICHAEL J. WINKLER,
Plaintiffs,
v.
CHRISTOPHER P. HANCOCK;
LUXUS LEGAL, LLC; HANCOCK
& ASSOCIATES, P.A.;
ANDREA A. 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.
__________________________________/
MOTION TO DISMISS
Defendants, JENNIFER ENGLERT (“ENGLERT”) and her firm, THE ORLANDO LAW
GROUP (“TOLG”) move to dismiss Plaintiffs’ Complaint, and as grounds state:
1. Plaintiffs have alleged claims against several attorneys for legal malpractice and emotional
distress.
2. Plaintiffs’ Counts against Defendants ENGLERT and TOLG are Count I (Legal
Malpractice) and Count IV (Emotional Distress).
3. In summary, Defendants ENGLERT and TOLG argue that Plaintiffs’ Complaint should be
dismissed based on three arguments:
a. Plaintiffs’ Complaint was filed after the statute of limitations and is now time
barred.
7243609v.1
b. Plaintiffs’ Complaint fails to state a cause of action for legal malpractice against
ENGLERT and TOLG because Plaintiffs’ allegations of proximate cause are
insufficient. I.e. – Plaintiffs had plenty of time to correct any alleged malpractice
by ENGLERT and TOLG and in fact did retain HANCOCK and others to do so.
c. Plaintiffs’ Count IV for emotion distress is not recognized by Florida law.
4. Plaintiffs allege that ENGLERT and TOLG were retained to enforce a settlement
agreement that Plaintiffs had entered into with the bank that held a mortgage on their home.
See paragraphs 15 and 16 of Plaintiffs’ Complaint.
5. Plaintiffs allege that ENGLERT and TOLG attended a hearing and won the motion to
enforce the settlement agreement, and the Court ordered the parties to work out the details
of the order. See paragraphs 17 and 18.
6. The parties could not come to an agreement on the wording of the order and the Bank’s
attorney inappropriately sent a proposed order to the division’s new judge without
mentioning that the parties were in disagreement and without even copying Defendants
ENGLERT and TOLG or the Plaintiffs. See paragraphs 20 through 24.
7. The Bank’s proposed order was entered on March 6, 2014. See paragraph 35.
8. Plaintiffs allegations of malpractice stem from ENGLERT’s failure to get the improperly
entered March 6, 2014 order vacated.
9. Plaintiffs allege ENGLERT and TOLG abandoned their representation of the Plaintiffs
who then retained a new attorney to move to vacate the improper March 6, 2014 order. See
paragraphs 27 through 29.
10. Plaintiffs allege that their new attorney, HANCOCK, indeed filed a timely motion to vacate
the March 6, 2014 order. See paragraph 35.
7243609v.1
11. Subsequently, the Court ordered the parties to prepare briefs and then have a hearing on
the motion to vacate. See paragraphs 36 through 41.
12. For whatever reason, HANCOCK withdrew the motion even though doing so would put
the WINKLER’s outside the one year time limit for moving to vacate an order. This is the
Plaintiffs’ key allegation of malpractice against HANCOCK.
13. As a result of HANCOCK’s inexplicable withdraw of the timely motion to vacate the
March 6, 2014 order, the Court no longer had jurisdiction to vacate the order and the
Plaintiffs were stuck with the March 6, 2014 order.
14. Eventually, the trial court denied the WINKLER’s motion to vacate the March 6, 2014
order and the WINKLER’s appealed the denial to the Fifth District Court of Appeal which
resulted in a Per Curium Affirmed. See paragraph 76. Plaintiffs do not allege the date
the 5th DCA entered the PCA, but the 5th DCA Clerk of Court docket indicates it happed
on April 12, 2016. The same docket shows that Ms. Winkler filed a motion for rehearing
en banc and that motion was denied on May 23, 2016. In other words, PLAINTIFFS
exhausted all remedies as of May 23, 2016.
15. The subject suit was filed on June 11, 2018.
16. To be liable for legal malpractice arising out of litigation, the attorney must 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).
17. In cases that proceed to final judgment, Florida’s two-year statute of limitations for
litigation-related malpractice under section 95.11(4)(a), Florida Statutes, begins to run
when final judgment becomes final, or if an appeal is taken, upon the appeal being affirmed
and the denial of the motions for rehearing. Silverstrone at 1175.
7243609v.1
18. In this case, the Plaintiffs appealed and their motion for rehearing was denied on May 23,
2016. As a result, they were required to file any claim for legal malpractice related to the
effort to vacate the May 6, 2014 order by May 23, 2018. Plaintiffs’ Complaint was filed
June 11, 2018 making it time barred pursuant section 95.11, Florida Statutes and
Silverstrone.
19. Even if the statute of limitations did not apply, Plaintiffs’ Count I for legal malpractice
against ENGLERT and TOLG fails to state a cause of action due to lack of proximate
cause.
20. In Frazier vs. Effmen, 501 So.2d 114 (Fla. 4th DCA 1987), the defendant attorney moved
to dismiss on the basis that he was discharged well before a statute of limitations would
run and new counsel was retained long before the claim became barred. The trial court
agreed and the Fourth DCA affirmed the decision.
21. At the time that Plaintiffs obtained another attorney (HANCOCK), there was more than
enough time to pursue the motion to vacate the May 6, 2014 order and thus any omission
alleged against ENGLERT AND TOLG did not cause any damage to the Plaintiffs.
22. In addition, Florida law does not allow recovery of damages for emotional distress in
claims for legal malpractice and thus Count IV fails to state a cause of action. See Rowell
vs. Holt, 860 So.2d 474 (Fla. 2003).
WHEREFORE, Defendants ENGLERT and THE ORLANDO LAW GROUP requests
this Court dismiss Plaintiffs’ Complaint with prejudice and grant such further relief as it deems
proper.
CERTIFICATE OF SERVICE
I hereby certify that on August 27, 2018, I electronically filed the foregoing pursuant to
the Supreme Court of Florida Order No. AOSC13-49 with the Clerk of Court by using the Florida
7243609v.1
Courts E-Filing Portal who will send notice of this electronic filing to: Diana K. Winkler and
Michael J. Winkler, (dianakwinkler@gmail.com), 10908 Dominico Street, Orlando, FL 32825
(pro se Plaintiffs); and Michael E. Morris, Esquire, (memorrislaw@gmail.com), 1060
Woodcock Road, Orlando, FL 32803; Christopher P. Hancock (luxuslegal@gmail.com), 255 S.
Westmonte Dr., Altamonte Springs, FL 32714; Aurora McCreary, Esquire
(amccreary@wgworl.com), 1059 Maitland Center Commons Blvd., Maitland, FL 32751.
/s/ Sean M. McDonough
SEAN M. McDONOUGH, ESQUIRE
Florida Bar No. 896446
sean.mcdonough@wilsonelser.com
Wilson Elser Moskowitz Edelman & Dicker LLP
111 North Orange Avenue, Suite 1200
Orlando, Florida 32801
407-203-7599 - Phone
407-648-1376 - Facsimile
Attorneys for Defendants,
JENNIFER ENGLER and THE ORLANDO LAW GROUP
SMM:vs
7243609v.1
Preview
Filing # 77065452 E-Filed 08/27/2018 04:09:30 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA CIVIL DIVISION DIANA K. WINKLER and CASE NO.: 2018-CA-006581-O MICHAEL J. WINKLER, Plaintiffs, v. CHRISTOPHER P. HANCOCK; LUXUS LEGAL, LLC; HANCOCK & ASSOCIATES, P.A.; ANDREA A. 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. __________________________________/ MOTION TO DISMISS Defendants, JENNIFER ENGLERT (“ENGLERT”) and her firm, THE ORLANDO LAW GROUP (“TOLG”) move to dismiss Plaintiffs’ Complaint, and as grounds state: 1. Plaintiffs have alleged claims against several attorneys for legal malpractice and emotional distress. 2. Plaintiffs’ Counts against Defendants ENGLERT and TOLG are Count I (Legal Malpractice) and Count IV (Emotional Distress). 3. In summary, Defendants ENGLERT and TOLG argue that Plaintiffs’ Complaint should be dismissed based on three arguments: a. Plaintiffs’ Complaint was filed after the statute of limitations and is now time barred. 7243609v.1 b. Plaintiffs’ Complaint fails to state a cause of action for legal malpractice against ENGLERT and TOLG because Plaintiffs’ allegations of proximate cause are insufficient. I.e. – Plaintiffs had plenty of time to correct any alleged malpractice by ENGLERT and TOLG and in fact did retain HANCOCK and others to do so. c. Plaintiffs’ Count IV for emotion distress is not recognized by Florida law. 4. Plaintiffs allege that ENGLERT and TOLG were retained to enforce a settlement agreement that Plaintiffs had entered into with the bank that held a mortgage on their home. See paragraphs 15 and 16 of Plaintiffs’ Complaint. 5. Plaintiffs allege that ENGLERT and TOLG attended a hearing and won the motion to enforce the settlement agreement, and the Court ordered the parties to work out the details of the order. See paragraphs 17 and 18. 6. The parties could not come to an agreement on the wording of the order and the Bank’s attorney inappropriately sent a proposed order to the division’s new judge without mentioning that the parties were in disagreement and without even copying Defendants ENGLERT and TOLG or the Plaintiffs. See paragraphs 20 through 24. 7. The Bank’s proposed order was entered on March 6, 2014. See paragraph 35. 8. Plaintiffs allegations of malpractice stem from ENGLERT’s failure to get the improperly entered March 6, 2014 order vacated. 9. Plaintiffs allege ENGLERT and TOLG abandoned their representation of the Plaintiffs who then retained a new attorney to move to vacate the improper March 6, 2014 order. See paragraphs 27 through 29. 10. Plaintiffs allege that their new attorney, HANCOCK, indeed filed a timely motion to vacate the March 6, 2014 order. See paragraph 35. 7243609v.1 11. Subsequently, the Court ordered the parties to prepare briefs and then have a hearing on the motion to vacate. See paragraphs 36 through 41. 12. For whatever reason, HANCOCK withdrew the motion even though doing so would put the WINKLER’s outside the one year time limit for moving to vacate an order. This is the Plaintiffs’ key allegation of malpractice against HANCOCK. 13. As a result of HANCOCK’s inexplicable withdraw of the timely motion to vacate the March 6, 2014 order, the Court no longer had jurisdiction to vacate the order and the Plaintiffs were stuck with the March 6, 2014 order. 14. Eventually, the trial court denied the WINKLER’s motion to vacate the March 6, 2014 order and the WINKLER’s appealed the denial to the Fifth District Court of Appeal which resulted in a Per Curium Affirmed. See paragraph 76. Plaintiffs do not allege the date the 5th DCA entered the PCA, but the 5th DCA Clerk of Court docket indicates it happed on April 12, 2016. The same docket shows that Ms. Winkler filed a motion for rehearing en banc and that motion was denied on May 23, 2016. In other words, PLAINTIFFS exhausted all remedies as of May 23, 2016. 15. The subject suit was filed on June 11, 2018. 16. To be liable for legal malpractice arising out of litigation, the attorney must 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). 17. In cases that proceed to final judgment, Florida’s two-year statute of limitations for litigation-related malpractice under section 95.11(4)(a), Florida Statutes, begins to run when final judgment becomes final, or if an appeal is taken, upon the appeal being affirmed and the denial of the motions for rehearing. Silverstrone at 1175. 7243609v.1 18. In this case, the Plaintiffs appealed and their motion for rehearing was denied on May 23, 2016. As a result, they were required to file any claim for legal malpractice related to the effort to vacate the May 6, 2014 order by May 23, 2018. Plaintiffs’ Complaint was filed June 11, 2018 making it time barred pursuant section 95.11, Florida Statutes and Silverstrone. 19. Even if the statute of limitations did not apply, Plaintiffs’ Count I for legal malpractice against ENGLERT and TOLG fails to state a cause of action due to lack of proximate cause. 20. In Frazier vs. Effmen, 501 So.2d 114 (Fla. 4th DCA 1987), the defendant attorney moved to dismiss on the basis that he was discharged well before a statute of limitations would run and new counsel was retained long before the claim became barred. The trial court agreed and the Fourth DCA affirmed the decision. 21. At the time that Plaintiffs obtained another attorney (HANCOCK), there was more than enough time to pursue the motion to vacate the May 6, 2014 order and thus any omission alleged against ENGLERT AND TOLG did not cause any damage to the Plaintiffs. 22. In addition, Florida law does not allow recovery of damages for emotional distress in claims for legal malpractice and thus Count IV fails to state a cause of action. See Rowell vs. Holt, 860 So.2d 474 (Fla. 2003). WHEREFORE, Defendants ENGLERT and THE ORLANDO LAW GROUP requests this Court dismiss Plaintiffs’ Complaint with prejudice and grant such further relief as it deems proper. CERTIFICATE OF SERVICE I hereby certify that on August 27, 2018, I electronically filed the foregoing pursuant to the Supreme Court of Florida Order No. AOSC13-49 with the Clerk of Court by using the Florida 7243609v.1 Courts E-Filing Portal who will send notice of this electronic filing to: Diana K. Winkler and Michael J. Winkler, (dianakwinkler@gmail.com), 10908 Dominico Street, Orlando, FL 32825 (pro se Plaintiffs); and Michael E. Morris, Esquire, (memorrislaw@gmail.com), 1060 Woodcock Road, Orlando, FL 32803; Christopher P. Hancock (luxuslegal@gmail.com), 255 S. Westmonte Dr., Altamonte Springs, FL 32714; Aurora McCreary, Esquire (amccreary@wgworl.com), 1059 Maitland Center Commons Blvd., Maitland, FL 32751. /s/ Sean M. McDonough SEAN M. McDONOUGH, ESQUIRE Florida Bar No. 896446 sean.mcdonough@wilsonelser.com Wilson Elser Moskowitz Edelman & Dicker LLP 111 North Orange Avenue, Suite 1200 Orlando, Florida 32801 407-203-7599 - Phone 407-648-1376 - Facsimile Attorneys for Defendants, JENNIFER ENGLER and THE ORLANDO LAW GROUP SMM:vs 7243609v.1