COLODNY V. BAL BAY REALTY

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 10-2662

Case Date: 12/08/2010

Preview:Third District Court of Appeal
State of Florida, July Term, A.D. 2010
Opinion filed December 8, 2010. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D10-2662 Lower Tribunal No. 01-9293 ________________

Colodny, Fass & Talenfeld, P.A., and Michael J. Colodny, individually,
Petitioners, vs.

Bal Bay Realty, Ltd.,
Respondent.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, Pedro P. Echarte, Jr., Judge. DeMahy Labrador & Drake and Michael T. Tomlin, for petitioners. Hall, Lamb and Hall, and Adam Hall, for respondent.

Before WELLS, SHEPHERD, and ROTHENBERG, JJ. WELLS, Judge.

Colodny, Fass & Talenfeld, P.A. and Michael J. Colodny seek certiorari review of the lower court's sua sponte order vacating a stay in a legal malpractice action. Finding that the trial court departed from the essential requirements of the law, we grant certiorari and quash the order. Respondent, Bal Bay Realty, Ltd., instituted the present legal malpractice action in April 2001. Therein, it alleged that Petitioners committed legal

malpractice in connection with Petitioners' representation of Respondent in a matter currently pending in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County. The lower court thereafter entered an agreed order granting Petitioners' motion to stay or abate the malpractice action pending the outcome of the underlying action in the Seventeenth Judicial Circuit. On

September 8, 2010, the lower court vacated the stay of the legal malpractice action on its own motion and, by a separate order, set the matter for trial. The petition for writ of certiorari ensued. In vacating the stay and allowing the malpractice issue to proceed to trial before the underlying matter currently pending in the Seventeenth Judicial Circuit is resolved, we find that the trial court departed from the essential requirements of the law. Burgess v. Lippman, 929 So. 2d 1097, 1098 (Fla. 4th DCA 2006)

(granting certiorari and quashing an order vacating a stay of a legal malpractice action, finding that abatement or stay of a legal malpractice action "is proper upon

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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"); Bierman v. Miller, 639 So. 2d 627, 628 (Fla. 3d DCA 1994) (finding that the trial court departed from the essential requirements of the law in vacating a stay of a legal malpractice action and allowing the malpractice action to proceed before the issues in a pending action on a contract were resolved, stating that "[u]ntil the validity of the agreement is decided . . . there can be no determination in the malpractice action as to whether [the attorney] was negligent in negotiating and drafting that agreement"). Accordingly, we grant the petition for writ of certiorari, quash the order under review and remand with directions to abate the legal malpractice action.

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