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Filing # 76406872 E-Filed 08/14/2018 11:52:05 AM
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
“AURORA MCCREARY”) , and hereby files this, her Motion to Dismiss or in the Alternative
for a More Definite Statement and states as follows:
1. The Plaintiffs have filed a four (4) count Complaint.
2. 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.
3. 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.
4. Count III is for “FRAUDULENT MISREPRESENTATION & MISLEADING
ADVERTISEMENT” against HYATT. The Defendant, AURORA MCCREARY, is never
mentioned in the allegations nor the wherefore clause.
5. Count IV is for “EMOTIONAL DISTRESS”. The Defendant, AURORA
MCCREARY, is mentioned as a partner of the Defendant, CHRISTOPHER P. HANCOCK.
6. As the only Counts addressed as being against the Defendant, AURORA
MCCREARY, she will only address Count II and Count IV.
7. The Plaintiffs fail to state a cause of action for which relief may be granted for
Count II and IV.
8. The Plaintiffs fails to plead the necessary and required elements to bring a cause
of action for Legal Malpractice and Emotional Distress.
9. The Plaintiff’s claim for Legal Malpractice is barred pursuant to the doctrine of
Res Judicata.
10. The Plaintiff’s claims for Legal Malpractice and Emotional Distress are barred
pursuant to the doctrine of Laches.
11. 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).
12. The Plaintiff’s claims state that they hired the Defendant, the Defendant,
AURORA MCCREARY, was a partner of the Defendant, CHRISTOPHER P. HANCOCK.
13. The Defendant, AURORA MCCREARY, was not a partner of the Defendant,
CHRISTOPHER HANCOCK.
14. The Plaintiffs plead facts regarding the Florida Bar Complaint, SC18-157, against
the Defendant, CHRISTOPHER HANCOCK, and even note themselves as witnesses in the
matter. The Plaintiff were also informed during this trial that the Defendant, AURORA
MCCREARY, not a partner.
15. The Plaintiffs plead that they hired the firm, MORRIS AND HANCOCK, P.A.,
for their matter.
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16. The Plaintiffs plead that they were informed that the Defendant, CHRISTOPHER
HANCOCK, was the attorney handling their matter.
17. The Plaintiffs never plead that they communicated, had interactions, or even had
the allusion of contact or a relationship with the Defendant, AURORA MCCREARY.
18. The Plaintiffs fail to plead that the Defendant, AURORA MCCREARY, was an
employee during the alleged timeline and what actions were caused during her time as an
employee.
19. The Plaintiffs never plead that the Defendant, AURORA MCCREARY, created
any sort of relationship with them or their case.
20. The Plaintiffs never plead that the Defendant, AURORA MCCREARY, had a
duty to them or their case.
21. 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.
22. 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.”).
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23. The complaint does not state what the Defendant, AURORA MCCREARY, may
have done 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 partner. The complaint fails to provide actual facts of
the Defendant, AURORA MCCREARY, as partner or as receiving distributions as a partner.
24. The allegation that the Defendant, AURORA MCCREARY, partook in partner
distributions is insufficient to support the legal malpractice claim as the alleged damages do not
flow from the distributions to partners.
25. 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.
26. 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).
27. The Plaintiffs allegations resolve around an unknown Order for the bank, a
Motion to Vacate said Order, and the withdrawing of a Motion by the Defendant,
CHRISTOPHER HANCOCK.
28. The Plaintiff request in their Wherefore clause “an award of damages….for the
costs and stress of years of litigations, the excess interest charged by the bank and sufficient
funds to defend the current litigation, or in the alternative, sufficient funds to just pay off the
remainder of [their] mortgage.”
29. The Plaintiffs fail to plead suffering any damages, lack standing for relief, and are
speculative and improper.
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30. The Plaintiffs plead that the Defendant, CHRISTOPHER HANCOCK, argued
their Motion to Vacate which was denied by the Judge.
31. Claims for emotional distress are ruled by the impact rule. The rule requires that
“before a plaintiff can recover damages for emotional distress caused by the negligence of
another, the emotional distress suffered must flow from physical injuries sustained in an impact.”
R.J. v. Humana of Fla., Inc., 652 So.2d 360, 362 (Fla.1995) (quoting Reynolds v. State Farm
Mut. Auto. Ins. Co., 611 So.2d 1294, 1296 (Fla. 4th DCA 1992)). The impact rule has been
traditionally applied primarily as a limitation to assure a tangible validity of claims for emotional
or psychological harm. See R.J., 652 So.2d at 363; Gonzalez v. Metro. Dade County Pub. Health
Trust, 651 So.2d 673, 675 (Fla.1995); Kush v. Lloyd, 616 So.2d 415, 423 n. 5 (Fla.1992).
32. The Plaintiffs fail to allege any facts regarding their “related physical conditions”.
33. The Plaintiffs fail to allege their “related physical conditions” were caused by
psychological trauma or mental distress.
34. The Plaintiffs fail to allege the Defendant, AURORA MCCREARY, was
connected to the event causing the trauma.
35. The Plaintiffs fail to allege any relationship between the Defendant, AURORA
MCCREARY, and themselves.
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.
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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. (200 E. Gaines St., Tallahassee, FL 32399); Jennifer
Englert (jenglert@theorlandolawgroup.com); The Orlando Law Group (12301 Lake Underhill
Road, Suite 213, Orlando, FL 32828) this __14th__ day of August, 2018.
/s/ Aurora McCreary, Esquire_____________
AURORA MCCREARY, ESQUIRE
Florida Bar #: 110400
1059 Maitland Center Commons Blvd.
Maitland, FL 32751
Phone: (407) 843-3990
Defendant
amccreary@wgworl.com
6
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Filing # 76406872 E-Filed 08/14/2018 11:52:05 AM 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 “AURORA MCCREARY”) , and hereby files this, her Motion to Dismiss or in the Alternative for a More Definite Statement and states as follows: 1. The Plaintiffs have filed a four (4) count Complaint. 2. 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. 3. 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. 4. Count III is for “FRAUDULENT MISREPRESENTATION & MISLEADING ADVERTISEMENT” against HYATT. The Defendant, AURORA MCCREARY, is never mentioned in the allegations nor the wherefore clause. 5. Count IV is for “EMOTIONAL DISTRESS”. The Defendant, AURORA MCCREARY, is mentioned as a partner of the Defendant, CHRISTOPHER P. HANCOCK. 6. As the only Counts addressed as being against the Defendant, AURORA MCCREARY, she will only address Count II and Count IV. 7. The Plaintiffs fail to state a cause of action for which relief may be granted for Count II and IV. 8. The Plaintiffs fails to plead the necessary and required elements to bring a cause of action for Legal Malpractice and Emotional Distress. 9. The Plaintiff’s claim for Legal Malpractice is barred pursuant to the doctrine of Res Judicata. 10. The Plaintiff’s claims for Legal Malpractice and Emotional Distress are barred pursuant to the doctrine of Laches. 11. 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). 12. The Plaintiff’s claims state that they hired the Defendant, the Defendant, AURORA MCCREARY, was a partner of the Defendant, CHRISTOPHER P. HANCOCK. 13. The Defendant, AURORA MCCREARY, was not a partner of the Defendant, CHRISTOPHER HANCOCK. 14. The Plaintiffs plead facts regarding the Florida Bar Complaint, SC18-157, against the Defendant, CHRISTOPHER HANCOCK, and even note themselves as witnesses in the matter. The Plaintiff were also informed during this trial that the Defendant, AURORA MCCREARY, not a partner. 15. The Plaintiffs plead that they hired the firm, MORRIS AND HANCOCK, P.A., for their matter. 2 16. The Plaintiffs plead that they were informed that the Defendant, CHRISTOPHER HANCOCK, was the attorney handling their matter. 17. The Plaintiffs never plead that they communicated, had interactions, or even had the allusion of contact or a relationship with the Defendant, AURORA MCCREARY. 18. The Plaintiffs fail to plead that the Defendant, AURORA MCCREARY, was an employee during the alleged timeline and what actions were caused during her time as an employee. 19. The Plaintiffs never plead that the Defendant, AURORA MCCREARY, created any sort of relationship with them or their case. 20. The Plaintiffs never plead that the Defendant, AURORA MCCREARY, had a duty to them or their case. 21. 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. 22. 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.”). 3 23. The complaint does not state what the Defendant, AURORA MCCREARY, may have done 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 partner. The complaint fails to provide actual facts of the Defendant, AURORA MCCREARY, as partner or as receiving distributions as a partner. 24. The allegation that the Defendant, AURORA MCCREARY, partook in partner distributions is insufficient to support the legal malpractice claim as the alleged damages do not flow from the distributions to partners. 25. 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. 26. 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). 27. The Plaintiffs allegations resolve around an unknown Order for the bank, a Motion to Vacate said Order, and the withdrawing of a Motion by the Defendant, CHRISTOPHER HANCOCK. 28. The Plaintiff request in their Wherefore clause “an award of damages….for the costs and stress of years of litigations, the excess interest charged by the bank and sufficient funds to defend the current litigation, or in the alternative, sufficient funds to just pay off the remainder of [their] mortgage.” 29. The Plaintiffs fail to plead suffering any damages, lack standing for relief, and are speculative and improper. 4 30. The Plaintiffs plead that the Defendant, CHRISTOPHER HANCOCK, argued their Motion to Vacate which was denied by the Judge. 31. Claims for emotional distress are ruled by the impact rule. The rule requires that “before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress suffered must flow from physical injuries sustained in an impact.” R.J. v. Humana of Fla., Inc., 652 So.2d 360, 362 (Fla.1995) (quoting Reynolds v. State Farm Mut. Auto. Ins. Co., 611 So.2d 1294, 1296 (Fla. 4th DCA 1992)). The impact rule has been traditionally applied primarily as a limitation to assure a tangible validity of claims for emotional or psychological harm. See R.J., 652 So.2d at 363; Gonzalez v. Metro. Dade County Pub. Health Trust, 651 So.2d 673, 675 (Fla.1995); Kush v. Lloyd, 616 So.2d 415, 423 n. 5 (Fla.1992). 32. The Plaintiffs fail to allege any facts regarding their “related physical conditions”. 33. The Plaintiffs fail to allege their “related physical conditions” were caused by psychological trauma or mental distress. 34. The Plaintiffs fail to allege the Defendant, AURORA MCCREARY, was connected to the event causing the trauma. 35. The Plaintiffs fail to allege any relationship between the Defendant, AURORA MCCREARY, and themselves. 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. 5 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. (200 E. Gaines St., Tallahassee, FL 32399); Jennifer Englert (jenglert@theorlandolawgroup.com); The Orlando Law Group (12301 Lake Underhill Road, Suite 213, Orlando, FL 32828) this __14th__ day of August, 2018. /s/ Aurora McCreary, Esquire_____________ AURORA MCCREARY, ESQUIRE Florida Bar #: 110400 1059 Maitland Center Commons Blvd. Maitland, FL 32751 Phone: (407) 843-3990 Defendant amccreary@wgworl.com 6