DENNIS M. HAMPT Plaintiff
BART CHERNOW, et al. Defendant
MEMORANDUM AND ORDER RE: MOTION TO DISMISS
MARVIN J. GARBIS, District Judge.
The Court has before it Defendants Dr. Bart Chernow's and Peggy Chernow's Motion to Dismiss [Document 6] and the materials submitted related thereto. The Court has held a hearing and has had the benefit of the arguments of counsel.
In 1998, Plaintiff Dennis M. Hampt ("Plaintiff") purchased land with a residence, garage, and other improvements located at 1515 Applecroft Lane, Cockeysville, Maryland 21030 (the "Property") from Defendants Bart and Peggy Chernow ("Defendants"). Defendants conveyed the Property to Plaintiff by a deed ("the Deed") dated November 17, 1998, which included the following signature section:
The Deed contained the following covenants:
[The Defendants] hereby covenant that they have not done or suffered to be done any act, matter or thing whatsoever, to encumber the property hereby conveyed; that they will warrant specially the property hereby granted; and that they will execute such further assurances of the same as may be requisite.
Compl. Ex. 1 [Document 2-1].
In November 2004, six years after his purchase of the Property, Plaintiff's then neighbors, the McNamaras, informed him that his fence, garage, and parking pad encroached on their property. The McNamaras hired a surveyor, who confirmed the encroachment in a location drawing of the Property. The McNamaras permitted the encroachment.
In December 2004, the McNamaras sold the Property to Elizabeth Anglada ("Ms. Anglada") who permitted the encroachment and Plaintiff agreed to install and maintain landscaping along the border of their properties. Plaintiff did what he promised, but Ms. Anglada never grated him a perpetual easement.
In October 2008, Ms. Anglada sold the Property to Matthew D. and Ronda Kunkel ("the Kunkels"). By letter dated July 22, 2011, the Kunkels refused to grant Plaintiff a perpetual easement for the encroachment and instead provided him with a limited license, terminable at will, for "maintenance, landscaping, ingress and egress." Compl. ¶ 26.
On March 8, 2013, Plaintiff filed the instant action in the Circuit Court for Baltimore County, Maryland. On May 22, 2013, the Defendants timely removed the action to this Court.
The Complaint presents claims in three Counts:
Count One Breach of Covenant of Special Warranty - Real Property Article § 2-106,
Count Two Breach of Covenant Against Encumbrances - Real Property Article § 2-106, and
Count Three Fraud
By the instant motion, the Defendants seek dismissal of all claims against them pursuant to Federal Rule of Civil Procedure 12(b)(6) claiming that the action is time barred.
II. DISMISSAL STANDARD
A motion to dismiss filed pursuant to Rule 12(b)(6) tests the legal sufficiency of a complaint. A complaint need only contain "a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007) (citations omitted). When evaluating a 12(b)(6) motion to dismiss, a plaintiff's well-pleaded allegations are accepted as true and the complaint is viewed in the light most favorable to the plaintiff. However, conclusory statements or a "formulaic recitation of the elements of a cause of action" will not suffice. Id . A complaint must allege sufficient facts to "cross the line between possibility and plausibility of entitlement to relief.'" Francis v. Giacomelli , 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly , 550 U.S. at 557).
Usually, a motion to dismiss filed under Rule 12(b)(6) cannot reach the merits of an affirmative defense like limitations. Goodman v. Praxair, Inc. , 494 F.3d 458, 464 (4th Cir. 2007). However, if, but only if, all the facts necessary to the affirmative defense clearly appear on the face of the complaint, dismissal can be proper. ...