Alan I. Armour, II and Nason, Yeager, Gerson, White & Lioce, P.A. v. Brian Hass, M.D., Brand Properties, LLC, etc., and Brand Properties, II, LLC, etc.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

ALAN I. ARMOUR, II and NASON, YEAGER, GERSON, WHITE &
LIOCE, P.A.,
Petitioners,

v.

BRIAN HASS, M.D., BRAND PROPERTIES, LLC, a Florida Limited
Liability Company; and BRAND PROPERTIES II, LLC, a Florida Limited
Liability Company,
Respondents.

No. 4D14-4375

[ April 8, 2015 ]

Petition for writ of certiorari to the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Meenu Sasser, Judge; L.T. Case No.
2014CA007755.

Kathryn L. Smith of Cole, Scott & Kissane, P.A., Miami, for petitioners.

Irwin R. Gilbert, Tabitha A. Taylor and Bryan J. Yarnell of Gilbert
Yarnell, Palm Beach Gardens, for respondents.

PER CURIAM.

Alan I. Armour, II, and his law firm, defendants in a legal malpractice
action, seek certiorari review of a non-final order which denied in part their
motion to dismiss, abate, or stay the malpractice action. It is undisputed
that the underlying litigation on which the malpractice action is based is
still pending. While the trial court stayed the trial, and discovery as to
damages, it otherwise allowed the action to proceed, including discovery
as to liability.

Until there is a judgment against plaintiffs in the underlying action, “a
malpractice claim is ‘hypothetical’ and damages are ‘speculative.’” David
J. Stern, P.A. v. Sec. Nat’l Servicing Corp., 969 So. 2d 962, 966 (Fla. 2007)
(quoting Sec. Nat. Servicing Corp. v. Law Office of David J. Stern, P.A., 916
So. 2d 934, 937 (Fla. 4th DCA 2005) (quoting Silvestrone v. Edell, 721 So.
2d 1173, 1175 (Fla. 1998))). The trial court erred in allowing any discovery
to go forward. The case should have been stayed or abated.
 Accordingly, we grant the petition. See Burgess v. Lippman, 929 So. 2d
1097, 1099 (Fla. 4th DCA 2006); Bierman v. Miller, 639 So. 2d 627 (Fla.
3d DCA 1994). The plaintiffs’ contention—that an exception to the general
rule is warranted because they already have suffered damages by
incurring attorney’s fees in defending the underlying action—is without
merit. See Bierman, 639 So. 2d at 628 (determining that vacating a stay
was a departure from the essential requirements of law because the
malpractice action had not yet accrued and the plaintiff had not yet
suffered “redressable” harm although plaintiff had amassed considerable
attorney’s fees in the underlying action).

Petition Granted.

GROSS, TAYLOR and MAY, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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