United States District Court, D. Maryland, Southern Division
COUNCIL OF UNIT OWNERS OF MILESTONE TOWNHOUSE CONDOMINIUMS, Plaintiff,
BEAZER HOMES, LLC, Defendant.
J. HAZEL UNITED STATES DISTRICT JUDGE.
case, Plaintiff, the Council of Unit Owners of Milestone
Townhouse Condominiums, seeks to recover from Defendant
Beazer Homes, LLC for an alleged violation of the Maryland
Consumer Protection Act, Maryland Code Commercial Law §
13-301 et seq. ECF No. 2. Pending before the Court
is Defendant's Motion to Dismiss. ECF No. 12. No hearing
is necessary. See Loc. R. 105.6 (D. Md. 2016). For
the following reasons, Defendants' Motion to Dismiss is
is a condominium association that represents the interests of
most owners of units in the Milestone Condominium project-a
development established by Declaration on September 23, 1997.
ECF No. 2 ¶¶ 1-3. Defendant acted as the Milestone
developer during a period that included June 1997 through
August 2000. Id. ¶ 8. Defendant hired and
supervised contractors, architects, professional engineers,
and others to make real property improvements to what became
the Milestone common areas and condominium units.
Id. ¶ 9. Defendant also acted as the seller of
units between June 1997 and 2001. Id. ¶ 10.
proper installation of weather resistant barriers between
exterior siding and wall sheathing is a requirement per
applicable building codes, the Milestone project does not
include weather resistant barriers. Id. ¶¶
12-13. These barriers are to include flashing, taping and
other measures around windows, doors, seams and other breaks
in weather resistant sheeting to prevent the intrusion of
moisture into the sheathing and structural elements.
Id. ¶ 12.
of the hidden building defects, water entered beneath the
exterior cladding, damaging or threatening to damage
structural elements of the buildings that are common to two
or more units. Id. ¶ 18-19. Plaintiff alleges
that unit owners therefore paid more than market value for
their condominiums. Id. ¶ 20. Defendant's
failure to disclose the defects also meant that repairs were
not made in a timely fashion and that Plaintiff lost its
opportunity to assert warranty and contract claims.
Id. ¶ 21. Plaintiff discovered the lack of
weather resistant barriers while making repairs in 2016.
Id. ¶ 13. Plaintiff alleges that Defendant knew
or should have known that the buildings lacked weather
resistant barriers and that Defendant concealed this defect.
Id. ¶¶ 14-15, 16.
sued Defendant in the Circuit Court for Montgomery County
Maryland on March 23, 2018, and Defendant removed the case to
this Court on May 18, 2018. ECF No. 1. Plaintiff alleges that
Defendant violated the Maryland Consumer Protection Act (CPA)
by failing to disclose building defects to purchasers. ECF
No. 2 at 8-13. Defendant filed a Motion to Dismiss, arguing
that Plaintiff's CPA claim is barred by the Maryland
Statute of Repose, § 5-108(b).
STANDARD OF REVIEW
moves to dismiss Plaintiff's Complaint pursuant to Rule
12(b)(6), asserting that it fails to state any claim upon
which relief can be granted. To state a claim that survives a
Rule 12(b)(6) motion, a complaint, relying on only well-pled
factual allegations, must state at least a “plausible
claim for relief.” Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009). The “mere recital of elements of a
cause of action, supported only by conclusory statements, is
not sufficient to survive a motion made pursuant to Rule
12(b)(6).” Walters v. McMahen, 684 F.3d 435,
439 (4th Cir. 2012).
reviewing a motion to dismiss, the Court may consider
allegations in the complaint, matters of public record, and
documents attached to the motion to dismiss that are integral
to the complaint and authentic. See Philips v. Pitt Cnty.
Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
While a court may review affirmative defenses asserted in a
Rule 12(b)(6) motion to dismiss, such a motion should be
granted only in the “rare circumstances where facts
sufficient to rule on an affirmative defense are alleged in
the complaint.” Goodman v. PraxAir, Inc., 494
F.3d 458, 464 (4th Cir. 2007) (en banc). Moreover, a movant
cannot merely show that the elements of the defense appear on
the face of the complaint or in properly considered
documents, but must also “show that the plaintiff's
potential rejoinder to the affirmative defense was foreclosed
by the allegations in the complaint.” Id. at
contends that Plaintiff's CPA claim is time barred by the
Maryland Statute of Repose. That statute, § 5-108,
provides for a ten- and twenty-year time bar under the
following relevant circumstances:
(a) . . . no cause of action for damages accrues and a person
may not seek contribution or indemnity for damages incurred
when . . . injury to real or personal property resulting from
the defective and unsafe condition of an improvement to real
property occurs more than 20 years after the date the entire
improvement first becomes available for its intended use.
(b) . . . a cause of action for damages does not accrue and a
person may not seek contribution or indemnity from any
architect, professional engineer, or contractor for damages
incurred when . . . injury to real or personal property,
resulting from the defective and unsafe condition of an
improvement to real property, occurs more than 10 years ...