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Two Farms, Inc. v. Davis, Bowen & Friedel, Inc.

Superior Court of Delaware

December 26, 2017

TWO FARMS, INC., Plaintiff,
v.
DAVIS, BOWEN & FRIEDEL, INC., and SILICATO-WOOD PARTNERSHIP, LLC, Defendants.

          Submitted: December 15, 2017

          Shawn P. Tucker, Esquire, Law office of Drinker Biddle & Reath LLP, Wilmington Delaware, Attorney for Plaintiff.

          Richard L. Abbott, Esquire, Law office of Abbott Law Firm LLC, Hockessin, Delaware, Attorney for Defendant Silicato-Wood Partnership, LLC.

          Patrick M. McGrory, Esquire, Law office of Tighe & Cottrell, P.A., Wilmington, Delaware, Attorney for Defendant Davis, Bowen & Friedel, Inc.

          MEMORANDUM OPINION

          Noel Eason Primos JUDGE

         Before the Court are Defendant Davis, Bowen & Friedel, Inc.'s (hereinafter "DBF") and Defendant Silicato-Wood Partnership, LLC's (hereinafter individually, "Silicato, " and "Defendants, " collectively) motions to dismiss. Each motion requests dismissal of the complaint filed by Plaintiff Two Farms, Inc. (hereinafter "Two Farms") that alleges that Defendants knowingly concealed certain facts about a property located in Milford, Delaware (hereinafter the "Property") that Silicato sold to Two Farms. The facts recited here are those as alleged by Two Farms.[1]

         I. FACTUAL BACKGROUND

         In 2008, Silicato sought to develop the Property. DBF, acting as an agent for Silicato, prepared a survey of the land and the related record plans. Silicato and DBF submitted a building site plan (hereinafter the "Plan") to Milford's Development Advisory Committee. At a December 1, 2008 meeting, the Advisory Committee made several comments, in which the Committee advised that the Plan required certain adjustments. The comment pertinent to this action concerned a direct access entry point to the Property from Delaware Route 1 (hereinafter the "Entrance"). The Advisory Committee stated "[a] note shall be added to the record plan stating that this entrance may be modified or eliminated by [the Delaware Department of Transportation] as future traffic conditions necessitate." Neither DBF or Silicato made the recommended change to the Plan.

         In late 2010, Two Farms entered into a purchase agreement with Silicato for the Property, contingent on Silicato receiving approval to use the Property as a convenience store and gas station. Two Farms purchased the property on June 1, 2011, having received all development approvals, including an entrance permit issued by the Delaware Department of Transportation (hereinafter "DelDOT") for the Entrance. This permit also did not indicate that the Entrance was temporary. The final plan for construction on the Property was signed by Two Farms and DBF, and did not indicate the temporary nature of the Entrance. In short, the temporary nature of the Entrance was never disclosed to Two Farms by DBF or Silicate On October 2, 2015, DelDOT informed Two Farms that the direct access from Delaware Route 1 was temporary and was to be removed. Two Farms then filed the instant suit against Defendants, alleging fraud, negligence, and negligent misrepresentation.

         II. DISCUSSION

         A. Silicato's Motion to Dismiss

         In its motion to dismiss, Silicato raises four grounds for dismissal: (1) Two Farms's sole remedy for the injury is a pending condemnation action; (2) Two Farms's claim is not yet ripe, as the entrance has not yet been closed; (3) Two Farms has not pled causation and damages; and (4) Two Farms is barred from recovery by the Statute of Repose.

         1. Whether Two Farms's Sole Remedy Is a Pending Condemnation Action

         Silicato's first ground for dismissal argues that Two Farms "concedes that when [Two Farms] purchased the Property from [Silicato] that the Entrance was permanent and Delaware law establishes that the Entrance constitutes a vested property right which may only be taken away by DelDOT if the payment of Just Compensation is made ... ."[2]

         This ground for dismissal is premised on factual assertions contrary to those alleged by Two Farms. Two Farms's complaint does not concede that the entrance was permanent, but instead reads that "Silicato, the Delaware Department of Transportation, and DBF all knew that th[e] entrance to the Property was temporary in nature." The complaint contains no indication of an admission to the contrary. The Court must assume ...


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