Crocker Cirque II, LLC v. Abbondanza

          ORDER ON MOTION FOR SUMMARY JUDGMENT

          NANCY MILLS, JUSTICE

         Before the court is defendants Richard J. Abbondanza, Esq., James A. Hopkinson, Esq., and Hopkinson & Abbondanza, PA.'s motion for summary judgment. For the following reasons, the motion is granted.

         I. FACTS

         In 2005, plaintiffs Richard Goduti and James Goduti retained defendants Richard Abbondanza, Esq. and Hopkinson & Abbondanza, PA. to represent plaintiffs in the formation of a limited liability corporation, Crocker Cirque II, LLC ("Crocker Cirque"). (Defs.' Supp'g S.M.F. ¶ 1.^[1]) In the representation of plaintiffs, defendant Abbondanza prepared condominium documents, Fall Line Declaration of Condominium, recorded on December 1, 2005, with plaintiff Crocker Cirque as the declarant. (Defs.' Supp'g S.M.F. ¶ 2.) This Declaration of Condominium included a provision limiting plaintiff Crocker Cirque's right to declare additional units to ten years from the date of recording. (Defs.' Supp'g S.M.F. ¶ 3.) On April 13, 2006, defendant Hopkinson & Abbondanza prepared an Amended and Restated Declaration of Fall Line Condominium, recorded April 13, 2006. (Defs.' Supp'g S.M.F. ¶ 6.) The Amended Declaration altered the time period for plaintiff Crocker Cirque to declare additional units from ten years to seven years after the recording of the Amended Declaration. (Defs.' Supp'g S.M.F. ¶¶ 6-7.) Plaintiff Richard Goduti signed the Declaration of Condominium and the Amended Declaration as manager of plaintiff Crocker Cirque. (Defs.' Supp'g S.M.F.¶¶ 5, 9.)

         In 2012, an issue arose regarding whether plaintiffs could adjust the footprint of one of the buildings in the condominium project. (Pls.' Add'l S.M.F. ¶ 10.) An associate at defendant Hopkinson & Abbondanza researched and prepared a memorandum on the footprint issue, which he emailed to defendant Abbondanza on June 4, 2012. (Pls.' Add'l S.M.F. ¶¶ 11-12.) In the memorandum about the footprint issue, the associate quoted the Amended Declaration and stated, "Wherefore CC would have to exercise its rights by April 13, 2013." (Pls.' Add'l S.M.F. ¶ 15.) On May 5, 2015, plaintiff Richard Goduti's wife emailed defendant Abbondanza and inquired about the expiration of plaintiffs' declaration rights. (Pls.' Add'l S.M.F. ¶ 23.) Plaintiff Richard Goduti emailed defendant Abbondanza on May 12, 2015 and inquired about the right to develop additional units. (Pls.' Add'l S.M.F. ¶ 35.^[2]) Defendant Abbondanza responded that plaintiffs had the right to declare additional units. (Pls.' Add'l S.M.F. ¶ 36.)

         On August 14, 2018, plaintiffs filed an amended complaint to add defendant James Hopkinson, Esq. In the first amended complaint, plaintiffs allege defendants Abbondanza and Hopkinson & Abbondanza breached the duty of care and were negligent by:

a) failing to consult with Plaintiffs regarding a change to the time period for exercising declarant rights;

b) failing to advise Plaintiffs of the reduction in the time period for Crocker Cirque II, LLC to exercise its right to declare additional units from ten (10) years to seven (7) years after filing the Amended and Restated Declaration of Fall Line Condominium;

c) failing in June of 2012 to advise Plaintiffs that declaration rights had to be exercised prior to April 13, 2013;

d) failing in June of 2012 to advise Plaintiffs to amend the Fall Line Condominium Declaration based on their knowledge of the ongoing and continuing nature of the condominium project; and

e) failing in May of 2015 to advise Plaintiffs that their rights to declare additional units had already expired.

(Pls.' Amend. Compl. ¶ 44.) Plaintiffs also allege defendants Hopkinson and Hopkinson & Abbondanza breached their fiduciary duties by failing to advise plaintiffs that they should not proceed with the new phase of construction in light of the expiration of their declarant rights. (Pls.' Amend. Compl. ¶ 63.)

         II. PROCEDURE

         On August 14, 2018, plaintiffs filed an amended complaint against defendants. Defendants filed an answer on August 27, 2018 and on November 30, 2018, defendants filed a motion for summary judgment. Plaintiffs filed an opposition to the motion ...