Burgess v. Lippman, 929 So.2d 1097 (Fla. App. 2006)

FL: Underlying Transaction of Sale

Student Contributor: David Drescher

FACTS: David Lippman retained Scott Burgess and his law firm to represent him in a transaction for the sale of a charter airline. As part of the deal, Burgess had employed the services of one Asper to serve as a consultant in the matter. Allegedly, Asper converted funds belonging to Lippman that had been deposited into a trust account. Lippman’s malpractice suit alleged that Burgess failed to discuss Asper’s business practices with him. Lippman also filed actions against Asper himself as well as his shell company, Aviation Professionals. Burgess sought to dismiss the suit or attain an abatement of the malpractice action pending resolution of the claim against Asper. The motion was denied by the trial court.

ISSUE: Did the trial court err in not granting the abatement? Had the action for malpractice accrued yet?

RULING: “Abatement is proper upon a showing by the movant that a related or underlying judicial proceeding will determine whether damages were incurred which are causally related to the alleged negligence/malpractice”

“Lippman has not yet incurred any legally recoverable damages as a result of the alleged malpractice because the underlying claims against Asper are not resolved. Resolution of those claims will determine whether the damages claimed by Lippman are causally related to the malpractice claims against Burgess. This is necessarily so because if Asper did not convert Lippman’s funds, then there would be no damages suffered by Lippman caused by the alleged failure to warn by Burgess. Thus, the legal malpractice claim is premature and should be abated.”

LESSON: If you are being sued and the underlying issues that affect the malpractice action have not been resolved, seek to have the case dismissed or at the least, abated (i.e., stayed pending resolution of the underlying case.)