# Third District Court of Appeal State of Florida
Opinion filed March 20, 2024

. Not final until disposition of timely filed motion for rehearing.

________________ No. 3D22

- 2040 Lower Tribunal No. 21

- 17152

________________ 

### Betsy Rae Sherman, etc., et al. ,

Appellant s ,
vs. 

### Gursky R agan, P.A., etc., et al. ,

Appellee s

. An Appeal from the Circuit Court for Miami

- Dade County, Barbara Areces , Judge. Shapiro Ramos, Professional Association, and Jeffrey P. Shapiro , for appellant s

. Klein Park & Lowe, P.L., and Robert M. Klein, Andrew M. Feldman, and Charles G. Short , for appellee s

.

Before LOGUE, C.J., and FERNANDEZ and GORDO , JJ. LOGUE, C.J

. Betsy Rae Sherman and Robert G. Risman, condominium unit owners on Fisher Island, appeal the dismissal with prejudice of their claims against2

their association’s general counsel , Gursky Ragan, P.A. and Marnie Ragan , Esquire (collectively , “ G eneral C ounsel”) . The U nit O wners con tend that the G eneral C ounsel breached its fiduciary duty to them when it provided legal advice that benefited a nother unit owner ’s plans to obtain exclusive use of part of the common elements . The U nit O wners also argue that the G eneral C ounsel’s legal advice aided and abetted the president ’s breach of his fiduciary duty to the U nit O wners. Because the U nit O wners failed to allege facts establishing these claims , we find no error

. BACKGROUND As alleged in the compl aint , all six units in on e of the association’s nine buildings w ere purchased by 159 Fisher Island Holdings, LLC (“Holdings, LLC”). The association’s president was the realtor in five of those sales. Holdings, LLC planned to demolish the building, combine the units into one,
and b uild a single

- family home

. The home’s footprint would also include 1,500 square feet of greenspace that was part of the common elements of
the association

. The complaint further alleged that transfer of ownership of
common elements to one unit owner required the approval of 100% of all the
unit owners in the condominium. Holdings, LLC sought the advice of the president and the G eneral C ounsel on ways to avoid the unanimous vote. The G eneral C ounsel advised3

that the unanimous vote could be avoided , an d a simple majority vote of the association’s board would be sufficient , if the common element s at issue

were simply leased to Holdings, LLC for an automatically renewing term of 99 years. 1 Holdings, LLC subsequently requested the association ’s board le ase it
the common elements at issue and approve its construction plans to build
the house. Following the advice of its G eneral C ounsel that it could do so,
the board

– with the president voting

– approve d the lease of the common elements and the construction plans. The G eneral C ounsel attended the meeting s where the votes took place but did not act to prevent the president from voting.
The U nit O wners, concerned that Holdings, LLC was given exclusive

use o f common elements in this manner, sued the association’s G eneral C ounsel and president. At issue here are the cause s of action against the G eneral C ounsel , of which there are two

. The U nit O wners claimed that the G eneral C ounsel breached its fiduciary duty to them by providing the legal advice that a lease of the common elements was a legal way to allow Holdings, LLC’s construction to

1 We do not consider or address whether the G eneral C ounsel’s legal opinion was correct.4

go forward without a unanimous vote of all unit owners. Next, they claimed
that the G enera l C ounsel ’s advice aided and abetted the president ’s breach of his fiduciary duty to the U nit O wners , which the president allegedly
committed when he voted to approve the lease and construction plan, despite being involved in the underlying real estate tra nsactions.
The G eneral C ounsel moved to dismiss these claims, arguing that the
U nit O wners failed to sufficiently plead them. The trial court granted the
motion and dismissed the claims with prejudice

. ANALYSIS We review the order granting the G eneral C ounsel’s motion to dismiss
de novo. Morin v. Florida Power & Light Co. , 963 So. 2d 258, 260 (Fla. 3d DCA 2007)

. Here, the G eneral C ounsel had a contractual fiduciary relationship with the association ’s board

. Palafrugell Holdings, Inc. v. Cassel , 825 So. 2d 937, 9 39 n.2 (Fla. 3d DCA 2001)

. This con tractual relationship , however, did not extend to the individual unit owners who can and often do
have interests adverse to the interests of the board

. See Brennan v. Ruffner , 640 So. 2d 143, 145

– 46 (Fla. 4th DCA 1994) (“[W] here an attorney represents a closely held corporation, the attorney is not in privity with and therefore owes no separate duty of diligence and care to an individual shareholder absent special circumstances or an agreement to also represent5

the shareholde r individually. ”); Silver Dunes Condo. of Destin, Inc. v. Beggs
and Lane , 763 So. 2d 1274, 1277 (Fla. 1st DCA 2000) (holding that shareholders of a condo minium association were not third

- party beneficiaries of an attorney’s contract with the association).
T he U nit O wners nevertheless argue that there was a n implied fiduciary relationship. A fiduciary relationship can be implied when “there is a degree of dependency on one side and an undertaking on the other side to protect and/or benefit the dependent part y.” Masztal v. City of Miami , 971 So. 2d 803, 809 (Fla. 3d DCA 2007)

. Such relationships are “premised upon the specific factual situation surrounding the transaction and the relationship of the parties.” Capital Bank v. MVB, Inc. , 644 So. 2d 515, 518 (Fla . 3d DCA 1994)

. The facts alleged do not support the finding of such an implied relationship. See Real Estate Value Co., Inc. v. Carnival Corp. , 92 So. 3d 255, 261

- 62 (Fla. 3d DCA 2012) (holding that where a party’s dependency on another party to act a certain way was not paired with either a contractual obligation or an undertaking to so act, there was no implied fiduciary relationship).
T he U nit O wners also argue that th ey sufficiently allege d that the General Counsel substantially assisted in carrying out the president’s alleged6

breach

. However, when r educed to their essence, the Unit Owners ’ allegations only show th at the G eneral C ounsel faile d to prevent the president from voting based on the president’s alleged conflict of interest

. Because the General Counsel did not owe the Unit Owners a fiduciary duty, t his alleged failure to act does not constitute substantial assistance

. See Chang v. JPMorgan Chase Bank, N.A. , 845 F.3d 1087, 1098 (11th Cir. 2017) (“Mere
inaction [in an aiding and abetting claim] constitutes substantial assistance only if the defendant owes a fiduciary duty directly to the plaintiff.” (citations omitted) )

. Finally, t he U nit O wners ’ argument that they should have been given
leave to amend is not well taken because it was never raised to the trial court. See Estate of Herrera v. Berlo Indus. Inc. , 840 So. 2d 272, 273 (Fla. 3d DCA 2003) (“[I] ssues not presented in the trial court cannot be raised for the first
time on appeal .” ).
A ffirm ed

. FERNANDEZ, J., concurs. GORDO, J., concurs in result only.