South Broadway Properties, LLC v. 999 South Broadway, LLC, 050520 RISUP, PC-2018-8236

Docket Nº:C. A. PC-2018-8236
Opinion Judge:STERN, J.
Party Name:SOUTH BROADWAY PROPERTIES, LLC, Plaintiff, v. 999 SOUTH BROADWAY, LLC; NICHOLAS BARRETT; and HOMEPRO INSPECTIONS OF RI CORP., Defendants, v. STEWART TITLE GUARANTY COMPANY, Third-Party Defendant.
Attorney:For Plaintiff: John O. Mancini, Esq.; Thomas P. Carter, Esq., Michael L. Mineau, Esq. For Defendant: Max Wistow, Esq.; Kenneth J. Sylvia, Esq., Lauren A. Solar, Esq.
Case Date:May 05, 2020
Court:Superior Court of Rhode Island
 
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SOUTH BROADWAY PROPERTIES, LLC, Plaintiff,

v.

999 SOUTH BROADWAY, LLC; NICHOLAS BARRETT; and HOMEPRO INSPECTIONS OF RI CORP., Defendants,

v.

STEWART TITLE GUARANTY COMPANY, Third-Party Defendant.

C. A. No. PC-2018-8236

Superior Court of Rhode Island, Providence

May 5, 2020

For Plaintiff: John O. Mancini, Esq.; Thomas P. Carter, Esq., Michael L. Mineau, Esq.

For Defendant: Max Wistow, Esq.; Kenneth J. Sylvia, Esq., Lauren A. Solar, Esq.

DECISION

STERN, J.

Defendants 999 South Broadway, LLC (999) and Nicholas Barrett (Barrett) (collectively, Defendants) have filed a motion for summary judgment as to all counts of Plaintiff South Broadway Properties, LLC's (Plaintiff) Second Amended Complaint (Complaint). Plaintiff timely objected to Defendants' motion and has filed a cross-motion for summary judgment as to Counts I and II of Plaintiff's Complaint. Defendants timely objected to Plaintiff's motion. Jurisdiction is pursuant to Super. R. Civ. P. 56(c) and G.L. 1956 §§ 8-2-14 and 9-30-1 et seq.

I

Facts and Travel

Barret is the sole member and manager of 999, which is a Rhode Island limited liability company. Defs.' Mot., Ex. A ¶ 1; see also id. at Ex. D. On or about November 10, 2004, 999 acquired three parcels located at or about 999 South Broadway, East Providence, Rhode Island (the Property). Id. at Ex. A ¶ 4; see also id. at Tab 1. The first parcel-more particularly described as East Providence Tax Assessor's Map 207, Block 2, Parcel 10-contains an office building (the Office Building Parcel). Id. ¶ 3; see also id. at Tab 2. The second parcel-more particularly described as East Providence Tax Assessor's Map 207, Block 4, Parcel 1-contains a parking lot (the Parking Lot Parcel) and is situated diagonally across the street from the Office Building Parcel. Id. ¶ 3; see also id. at Tab 2. The third parcel-more particularly described as East Providence Tax Assessor's Map 207, Block 2, Parcel 8-also contains a parking lot and is located down the street from the Office Building Parcel (the Disputed Parcel). Id. ¶ 3; see also id. at Tab 2.

On or about March 11, 2016, Barret-as manager of 999-and Muhammad S. Akhtar and Iole Ribizzi-Akhtar executed a Purchase and Sale Agreement for the sale of the Office Building Parcel and the Parking Lot Parcel. Id. at Tab 4. Shortly thereafter, Muhammad Akhtar formed South Broadway Properties, LLC. Id. at Ex. D. On or about April 29, 2016, Barret-as manager of 999-deeded the Office Building Parcel and the Parking Lot Parcel to Plaintiff. Id. at Ex. A. at Tab 6. Defendants retained ownership of the Disputed Parcel. Id. ¶ 11.

On May 27, 1987-decades prior to both Plaintiff and Defendants' ownership of the various parcels-the East Providence Zoning Board had granted a Use Variance for the Disputed Parcel (the Use Variance). Id. at Ex. E. The applicant-the East Providence Credit Union- requested "permission to construct off street parking in a residential district, a non-conforming use . . . ." Id. at Ex. E. The application sought a variance from the landscaping requirements for a parking area, and from Section 34-22(d) of the then-enacted Zoning Ordinance, which prohibited off-street parking for commercial uses in residential zones and required off-street parking spaces to "be on the same lot or premises as the building, structure or use it is intended to serve, on a lot adjoining the premises or on a lot directly across an adjoining street from the premises. When practical difficulties . . . prevent the location of off-street parking space as herein required, such space shall be located within four hundred feet of the premises." Id. at Ex. L.

In the narrative attached to the application, the East Providence Credit Union indicated that the Disputed Parcel would be used as an "accessory off-street parking facilit[y] for the East Providence Credit Union." Id. at Ex. E. During the Zoning Board hearing, counsel for the East Providence Credit Union testified that the parking on the Disputed Parcel would be limited "only to employees of the credit uni[on] and not to the customers." Id.

Plaintiff filed the instant action on June 7, 2019, seeking specific performance and alleging breach of contract, fraud and misrepresentation, fraud in the inducement, and breach of the implied duty of good faith and fair dealing in connection with their purchase of the Property. See generally id. at Ex. N at Tab F. Plaintiff alleges, inter alia, that the Defendants made false representations and/or failed to disclose the Use Variance, which Plaintiff alleges encumbered the Disputed Parcel and merged the Disputed Parcel, the Office Building Parcel, and the Parking Lot Parcel such that they are one lot and use of each lot is dependent on common ownership of all three parcels. Id. ¶¶ 18-21. Plaintiff further alleges that Defendants were aware of water issues, damages, leaking, and mold problems and did not disclose those problems to Plaintiff when it purchased the Property. Id. ¶ 22.

The Court heard from both parties on the instant motions for summary judgment on January 22, 2020. After considering oral and written arguments...

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