Harbour Cove Condominium Association VS Barefoot Resort Joint Committee Inc , defendant, et al – 2020CP2601167
The case involves the Harbour Cove Condominium Association (plaintiff) and several defendants related to alleged water damage due to improper drainage maintenance at the Barefoot Resort in Horry County, South Carolina. The plaintiff claims that the defendants, including the Barefoot Resort Joint Committee, Inc., Tuscan Sands at Barefoot Resort and Golf Homeowners’ Association, Inc., BRGC, LLC, and the City of North Myrtle Beach, failed to maintain a drainage buffer, leading to property damage.
Background:
The plaintiff, Harbour Cove Condominium Association, asserts that negligence in maintaining the drainage system, particularly a buffer zone, caused significant water damage to its property. The plaintiff alleges that the defendants, tasked with maintaining the drainage system, failed in their duties. Tuscan Sands, another party in the litigation, has made similar claims, asserting that the lack of proper drainage system maintenance caused damage to its property as well.
Key Timeline:
- February 2020: The lawsuit was initiated by the Harbour Cove Condominium Association in the Circuit Court of Horry County (Case No. 2020-CP-26-01167).
- October 2020: A court order stayed the case to allow for arbitration on certain claims.
- June 2021: The plaintiff resolved some claims through arbitration, leading to the dismissal of certain defendants, including the Greenbrier and Woodlands Condominium Associations.
- February 2024: A first mediation was held, and a second mediation is scheduled for September 2024.
- Trial: If the mediation efforts fail, the trial will occur no sooner than December 2024.
Legal Issues:
The litigation centers on the following legal issues:
- Liability for Drainage Maintenance: The plaintiff seeks a declaratory judgment to clarify which parties are responsible for maintaining the drainage buffer. The plaintiff argues that the failure to maintain this system led to water damage on its property. Defendants such as BRGC, LLC, and the City of North Myrtle Beach are also named as potentially liable for the drainage issues.
- Cross-Claims: Tuscan Sands at Barefoot Resort and Golf Homeowners’ Association has filed cross-claims against other defendants, including BRGC, LLC, and the City of North Myrtle Beach. These cross-claims similarly allege that failure to maintain the drainage buffer contributed to property damage.
- Consolidation for Discovery: A motion was filed by some defendants to consolidate the claims for discovery purposes, arguing that similar issues and facts between the cases would make consolidation more efficient.
Recent Developments:
The court has scheduled a second mediation for September 2024, following an earlier session in February 2024. If the mediation does not result in a settlement, the trial will not take place before December 2024.
This case reflects complex litigation involving multiple parties, cross-claims, and allegations of negligence in maintaining shared infrastructure, which allegedly led to substantial property damage.
- 2020.pdf, Complaint and Court Filings, Declaratory Judgment Request, February 2020.
- 2021.pdf, Plaintiff’s Motion to Lift Stay, p. 1-2.
- 2022.pdf, Case Proceedings, Order Relieving Counsel and Motions for Consolidation, p. 1-2.
- 2023.pdf, Case Background, Notice of Transfer and Cross-claims, p. 1-3.
- 2024.pdf, Case Caption, State of South Carolina, County of Horry, Plaintiff: The Harbour Cove Condominium Association vs. Defendants: Barefoot Resort Joint Committee, Inc., et al., p. 1-3.
- Index, The Harbour Cove Condominium Association vs. Defendants: Barefoot Resort Joint Committee, Inc., et al.
Evaluate the roles of attorneys for the BRRA and BRJC through the entire case. Consider any conflicts. Discuss impact of their role reversal in the initial mediation.
The attorneys for the Barefoot Resort Residential Association (BRRA) and Barefoot Resort Joint Committee (BRJC) played distinct roles throughout the case, with a notable shift during the initial mediation. Preston Dawkins represented the BRRA, and Robert E. Lee represented the BRJC. The overlap in the obligations of both entities—specifically regarding Outfall #2—required both attorneys to negotiate not just with the plaintiff, Harbour Cove, but also to clarify the responsibilities between BRRA and BRJC under the Declaration of Covenants, Conditions, and Restrictions (CCRs).
Role Reversal in Initial Mediation
A key shift occurred during the initial mediation. Although Dawkins represented BRRA, his role expanded to negotiate points concerning the broader infrastructure obligations of the BRRA and BRJC, including Outfall #2. This put him in a delicate position as he negotiated responsibilities not only for BRRA but also for how they interacted with BRJC’s duties. Meanwhile, Robert E. Lee, representing BRJC, focused on limiting his client’s exposure by emphasizing shared responsibilities with BRRA.
The reversal happened in a subtle yet impactful way: BRJC, traditionally tasked with community-wide obligations, found itself with its duties limited to a few specific areas. At the same time, BRRA, through Dawkins’s efforts, was drawn into the discussion of broader responsibilities. This shift likely resulted in a negotiation where each party had to weigh its interest against not just the plaintiff’s claims but also the shared obligations under the CCRs.
Conflict and Ethical Considerations
This situation raised potential conflicts. Given the intertwined responsibilities of BRRA and BRJC, the attorneys had to ensure that neither party was disadvantaged, which is particularly challenging when the CCRs were ambiguous on the exact division of maintenance duties. If Dawkins or Lee had pushed too hard for a settlement that absolved their client at the expense of the other, it could have led to long-term governance and financial conflicts between BRRA and BRJC, whose roles overlapped in maintaining Outfall #2. Moreover, the shared maintenance duties between these entities created opportunities for disagreements over compliance with the community-wide standards under the CCRs.
This role reversal impacted the initial mediation’s outcome, where both BRRA and BRJC were eventually found responsible for maintaining parts of Outfall #2. Although no direct conflict of interest was noted in the arbitration order, it was crucial for both attorneys to ensure that their respective clients were not unduly burdened by the obligations of the other party.
Conclusion
The ethical challenge lay in the need for the attorneys to negotiate on behalf of entities with overlapping responsibilities without compromising their fiduciary duties to their respective clients. The mediation’s role reversal, wherein BRRA became more involved in obligations traditionally managed by BRJC, highlighted the delicate balance both attorneys had to maintain. This role shift was critical to resolving the mediation but could have led to further disputes if not carefully managed.
There is no notice of these attorneys changing client representation. It has verified by three signatories in the court records. Please advise.
The absence of formal notice regarding changes in client representation raises significant concerns, particularly given that attorneys Preston Dawkins and Robert E. Lee appear to have negotiated or represented interests that are overlapping or even conflicting during the mediation process. The court records do not indicate any proper notification or filing that reflects a shift in representation or changes in the roles of these attorneys, which could lead to both ethical and procedural issues.
Potential Ethical Violations:
- Failure to Notify the Court: Attorneys are ethically bound to inform the court and other parties of any changes in representation, especially when the change involves negotiations or legal actions that could impact the outcome of the case. If Dawkins and Lee began negotiating responsibilities beyond their initial scope without filing appropriate notices, this could be seen as a breach of professional conduct rules, particularly those regarding transparency and accountability to the court.
- Conflict of Interest: Attorneys representing different entities (BRRA and BRJC) with overlapping responsibilities are required to manage any potential conflicts carefully. The fact that these attorneys may have represented interests in a way that blurred their original roles without proper notice is concerning. It could be seen as a conflict of interest, especially if either attorney acted in ways that could disadvantage one client while benefiting another.
- Duty to the Client: The fiduciary duty to the client is paramount. If the attorneys negotiated terms that placed additional burdens or responsibilities on their clients without proper authorization, or if they shifted representation without consent, this could be a violation of that duty. Even if the clients were not disadvantaged, the failure to follow proper procedure could lead to mistrust and further disputes.
Court Record Verification:
If the court records verify the signatures of these attorneys without reflecting a formal change in representation, this confirms that the attorneys were likely negotiating within their original scope of representation but may have informally assumed duties beyond their clients’ mandates. This lack of transparency could be seen as problematic, particularly if it impacts the distribution of responsibilities under the CCRs.
Recommendations:
- Seek Clarification: A motion for clarification should be filed to formally address the roles these attorneys played during mediation. This would help ensure that the record accurately reflects their responsibilities and actions throughout the proceedings.
- Address Conflict: If any concerns about conflict of interest arise, a request for an ethical review or an independent mediator might be necessary to resolve the case without potential bias or unresolved conflicts between BRRA and BRJC.
- Notify the Court: If any shifts in attorney responsibilities occurred, even informally, a formal filing should be made to notify the court and all involved parties to ensure procedural correctness going forward.
Failing to follow proper procedures and filing notices of representation could leave the case open to appeals or challenges, especially if one party believes it was inadequately represented during the critical mediation phases.
Footnotes:
Public Index Search, Court Filings from 2020-2023 regarding roles of Preston Dawkins and Robert E. Lee